[House Report 105-845]
[From the U.S. Government Publishing Office]
Union Calendar No. 486
105th Congress, 2d Session - - - - - - - - - - - - House Report 105-845
REPORT ON THE ACTIVITIES
OF THE
COMMITTEE ON THE JUDICIARY
OF THE
HOUSE OF REPRESENTATIVES
DURING THE
ONE HUNDRED FIFTH CONGRESS
PURSUANT TO
Clause 1(d) Rule XI of the Rules of the
House of Representatives
January 2, 1999.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
--------
U.S. GOVERNMENT PRINTING OFFICE
52-984 WASHINGTON : 1999
COMMITTEE ON THE JUDICIARY
House of Representatives
ONE HUNDRED FIFTH CONGRESS
------
HENRY J. HYDE, Illinois, Chairman \1\
F. JAMES SENSENBRENNER, Jr., JOHN CONYERS, Jr., Michigan
Wisconsin BARNEY FRANK, Massachusetts
BILL McCOLLUM, Florida CHARLES E. SCHUMER, New York
GEORGE W. GEKAS, Pennsylvania HOWARD L. BERMAN, California
HOWARD COBLE, North Carolina RICK BOUCHER, Virginia
LAMAR S. SMITH, Texas JERROLD NADLER, New York
STEVEN SCHIFF, New Mexico \5\ ROBERT C. SCOTT, Virginia
ELTON GALLEGLY, California MELVIN L. WATT, North Carolina
CHARLES T. CANADY, Florida ZOE LOFGREN, California
BOB INGLIS, South Carolina SHEILA JACKSON LEE, Texas
BOB GOODLATTE, Virginia MAXINE WATERS, California
STEPHEN E. BUYER, Indiana MARTIN T. MEEHAN, Massachusetts
SONNY BONO, California \2\ WILLIAM D. DELAHUNT, Massachusetts
ED BRYANT, Tennessee ROBERT WEXLER, Florida
STEVE CHABOT, Ohio STEVEN R. ROTHMAN, New Jersey
BOB BARR, Georgia THOMAS M. BARRETT, Wisconsin \7\
WILLIAM L. JENKINS, Tennessee
ASA HUTCHINSON, Arkansas
EDWARD A. PEASE, Indiana
CHRISTOPHER B. CANNON, Utah
JAMES E. ROGAN, California \3\
LINDSEY O. GRAHAM, South Carolina
\4\
MARY BONO, California \6\
Thomas E. Mooney, Sr., Chief of Staff-General Counsel
Jon W. Dudas, Deputy General Counsel-Staff Director
Julian Epstein, Minority Chief Counsel and Staff Director
Perry Apelbaum, Minority General Counsel
----------
\1\ Henry J. Hyde, Illinois, elected to the Committee as Chairman
pursuant to House Resolution 12, approved by the House January 7, 1997.
Republican Members elected to the Committee pursuant to House
Resolution 12, approved by the House January 7, 1997.
Democratic Members elected to the Committee pursuant to House
Resolution 13, approved by the House January 7, 1997.
\2\ Sonny Bono, California, deceased January 5, 1998.
\3\ James E. Rogan, California, elected to the Committee pursuant
to House Resolution 354, approved by the House February 11, 1998.
\4\ Lindsey O. Graham, South Carolina, elected to the Committee
pursuant to House Resolution 371, approved by the House February 26,
1998.
\5\ Steven Schiff, New Mexico, deceased March 25, 1998.
\6\ Mary Bono, California, elected to the Committee pursuant to
House Resolution 429, approved by the House May 13, 1998.
\7\ Thomas M. Barrett, Wisconsin, elected to the Committee pursuant
to House Resolution 530, approved by the House September 11, 1998.
Subcommittees of the Committee on the Judiciary \1\
------
Crime
BILL McCOLLUM, Florida, Chairman
STEVEN SCHIFF, New Mexico CHARLES E. SCHUMER, New York
STEPHEN E. BUYER, Indiana SHEILA JACKSON LEE, Texas
STEVE CHABOT, Ohio MARTIN T. MEEHAN, Massachusetts
BOB BARR, Georgia ROBERT WEXLER, Florida
ASA HUTCHINSON, Arkansas STEVEN R. ROTHMAN, New Jersey
GEORGE W. GEKAS, Pennsylvania
HOWARD COBLE, North Carolina
LINDSEY O. GRAHAM, South Carolina
------
Commercial and Administrative Law
GEORGE W. GEKAS, Pennsylvania, Chairman
LAMAR S. SMITH, Texas JERROLD NADLER, New York
STEVEN SCHIFF, New Mexico SHEILA JACKSON LEE, Texas
BOB INGLIS, South Carolina MARTIN T. MEEHAN, Massachusetts
ED BRYANT, Tennessee WILLIAM D. DELAHUNT, Massachusetts
STEVE CHABOT, Ohio
LINDSEY O. GRAHAM, South Carolina
------
Courts and Intellectual Property
HOWARD COBLE, North Carolina, Chairman
F. JAMES SENSENBRENNER, Jr., BARNEY FRANK, Massachusetts
Wisconsin JOHN CONYERS, Jr., Michigan
ELTON GALLEGLY, California HOWARD BERMAN, California
BOB GOODLATTE, Virginia RICK BOUCHER, Virginia
SONNY BONO, California ZOE LOFGREN, California
EDWARD A. PEASE, Indiana WILLIAM D. DELAHUNT, Massachusetts
CHRIS CANNON, Utah
BILL McCOLLUM, Florida
CHARLES T. CANADY, Florida
JAMES E. ROGAN, California
MARY BONO, California
----------
\1\ Subcommittee chairmanships and assignments approved January 21,
1997. Republican assignments revised March 3, 1998: James E. Rogan,
California, filled vacancies resulting from the death of Sonny Bono,
California (deceased January 5, 1998); Lindsey O. Graham, South
Carolina, filled vacancies resulting from the illness of Steven Schiff,
New Mexico (deceased March 25, 1998). Republican assignments revised
June 17, 1998, to add Mary Bono, California.
Immigration and Claims
LAMAR S. SMITH, Texas, Chairman
ELTON GALLEGLY, California MELVIN L. WATT, North Carolina
SONNY BONO, California CHARLES E. SCHUMER, New York
WILLIAM L. JENKINS, Tennessee HOWARD L. BERMAN, California
EDWARD A. PEASE, Indiana ZOE LOFGREN, California
CHRISTOPHER B. CANNON, Utah ROBERT WEXLER, Florida
ED BRYANT, Tennessee
JAMES E. ROGAN, California
MARY BONO, California
------
The Constitution
CHARLES T. CANADY, Florida, Chairman
HENRY J. HYDE, Illinois ROBERT C. SCOTT, Virginia
BOB INGLIS, South Carolina MAXINE WATERS, California
ED BRYANT, Tennessee JOHN CONYERS, Jr., Michigan
WILLIAM L. JENKINS, Tennessee JERROLD NADLER, New York
BOB GOODLATTE, Virginia MELVIN L. WATT, North Carolina
BOB BARR, Georgia
ASA HUTCHINSON, Arkansas
LETTER OF TRANSMITTAL
----------
House of Representatives,
Committee on the Judiciary,
Washington, DC, January 2, 1999.
Hon. Jeff Trandahl,
Clerk of the House of Representatives,
Washington, DC.
Dear Mr. Trandahl: Pursuant to clause 1(d) of rule XI of
the Rules of the House of Representatives, I am transmitting
the report on the activities of the Committee on the Judiciary
of the U.S. House of Representatives for the 105th Congress.
Sincerely,
Henry J. Hyde,
Chairman.
C O N T E N T S
----------
Page
Jurisdiction of the Committee on the Judiciary................... 1
Tabulation of Legislation and Activity........................... 3
Hearings......................................................... 4
Committee Prints................................................. 9
House Documents.................................................. 10
Summary of Activities of the Committee on the Judiciary.......... 12
Legislation Enacted Into Law................................. 12
Public Laws.............................................. 12
Private Laws............................................. 18
Conference Appointments...................................... 19
Tabulation of activity on legislation held at the full
Committee.................................................. 21
Full Committee Activities.................................... 21
Impeachment.................................................. 22
Impeachment of William Jefferson Clinton, President of
the United States...................................... 22
Background........................................... 22
H. Res. 525.......................................... 22
Procedures Applicable to the Review of the
Communication from the Independent Counsel......... 23
Proceedings Pursuant to H. Res. 525.................. 25
Consideration and Passage of H. Res. 581............. 26
Proceedings Pursuant to H. Res. 581.................. 28
H. Res. 611.......................................... 30
H. Res. 614.......................................... 30
Legislative Activities....................................... 31
Antitrust................................................ 31
Need-Based Educational Aid Antitrust Protection Act
of 1997--H.R. 1866 (Public Law 105-43)............. 31
The Curt Flood Act of 1998--S. 53 (Public Law 105-
297)............................................... 32
Charitable Donation Antitrust Immunity--H.R. 1902
(Public Law 105-26)................................ 35
Health Care and Antitrust--H.R. 415 and H.R. 4277.... 36
Liability Issues......................................... 37
Volunteer Protection--H.R. 911/S. 543................ 37
Year 2000 Information and Readiness Disclosure Act--
S. 2392 (Public Law 105-271)....................... 40
Matters Held at Full Committee............................... 42
Balanced Budget Constitutional Amendment--H.J. Res. 1 and
S.J. Res. 1............................................ 42
Terms of Office for Members of the Senate and the House
of Representatives--H.J. Res. 2........................ 43
Partial-Birth Abortion Ban Act--H.R. 929 and H.R. 1122... 43
Vacancies Act--H.R. 3420 (Section 151 of Public Law 105-
277)................................................... 43
Clarification That the Protections of the Federal Tort
Claims Act Apply to the National Gambling Impact Study
Commission--H.R. 1901 (Public Law 105-30).............. 44
Making a Technical Correction to Title 28, United States
Code, Relating to Jurisdiction for Lawsuits Against
Terrorist States--H.R. 1225 (Public Law 105-11)........ 45
Victims' Rights Constitutional Amendment and Implementing
Statute--H.J. Res. 71 and H.R. 1322.................... 46
Civil Asset Forfeiture Reform Legislation--H.R. 1835 and
H.R. 1965.............................................. 48
Department of Justice Appropriation Authorization Act,
Fiscal Years 1999, 2000, and 2001--H.R. 3303........... 51
Protection From Intrusion on Privacy--H.R. 2448 and H.R.
3224................................................... 52
Hate Crimes Prevention Act of 1997--H.R. 3081............ 54
Title 36 Codification--H.R. 1085 (Public Law 105-225).... 57
Title 36 Codification--S. 2524 (Public Law 105-354)...... 58
Title 49 Codification Update--H.R. 1086 (Public Law 105-
102)................................................... 58
Assassination Records Review Board Authorization
Extension--H.R. 1553 (Public Law 105-25)............... 58
Airline Service Improvement Act of 1998--H.R. 2748....... 59
Campaign Reform and Election Integrity Act of 1998--H.R.
3485................................................... 59
The Intelligence Community Whistleblower Protection Act
of 1998--H.R. 3829..................................... 59
Money Laundering Deterrence Act of 1998--H.R. 4005....... 59
Financial Information Privacy Act of 1998--H.R. 4321..... 60
Sense of the Congress Relating to an Award of Attorneys'
Fees, Costs, and Sanctions--H.J. Res. 107.............. 60
Criminal Charges for Failure to Comply with a Valid
Subpoena--H. Res. 244.................................. 60
President's Assertions of Executive Privilege--H. Res.
432.................................................... 61
Urging Full Cooperation with Congressional
Investigations--H. Res. 433............................ 61
Condemning the Brutal Killing of Mr. James Byrd, Jr.--H.
Res. 466............................................... 61
Impeachment Resolution Directed at Independent Counsel
Kenneth W. Starr--H. Res. 545.......................... 62
Condemning the Brutal Killing of Mr. Matthew Shepard--H.
Res. 597............................................... 62
Nazi War Crimes Disclosure Act--S. 1379 (Public Law 105-
246)................................................... 62
Authorization for Acceptance of Voluntary Services by the
Administrative Assistant to the Chief Justice--S. 2143
(Public Law 105-233)................................... 62
Oversight Activities......................................... 63
Full Committee Oversight Hearings........................ 63
Summary of activities of the Subcommittees of the Committee on
the Judiciary:
Subcommittee on Crime:
Tabulation of subcommittee legislation and activity...... 65
Jurisdiction of the Subcommittee......................... 65
Juvenile Crime........................................... 65
The Juvenile Accountability Block Grants Act of 1997. 65
Community Police Officers in Schools................. 67
Establishment of 2,500 Boys and Girls Clubs of
America by the year 2000........................... 68
National Youth Crime Prevention Demonstration Act.... 68
Juvenile Rape in Prison Protection Act of 1997....... 69
Protecting Our Children.................................. 69
The Jacob Wetterling Improvements Act................ 69
The Child Protection and Sexual Predator Punishment
Act of 1998........................................ 70
Deadbeat Parents Punishment Act of 1997.............. 73
No Second Chances for Murderers, Rapists, or Child
Molesters Act of 1998.............................. 73
Violent Crimes Committed by Repeat Offenders and
Criminals Serving Abbreviated Sentences............ 74
The Protection of Our Children Should Be the Nation's
Highest Priority................................... 74
Reinvigorating the War on Drugs.......................... 75
Western Hemisphere Act of 1998....................... 75
Drug Demand Reduction Act............................ 76
The Medical Marijuana Referenda Movement in America.. 76
Money Laundering..................................... 78
Money Laundering and Financial Crimes Strategy Act of
1997............................................... 79
Violent Crimes Committed by Repeat Offenders and
Criminals Serving Abbreviated Sentences............ 79
Speed Trafficking Life in Prison Act of 1997......... 80
Controlled Substances Trafficking Prohibition Act.... 80
Drug Diversion Investigations by the United States
Drug Enforcement Administration.................... 81
Date-Rape Drugs...................................... 83
Vital Tools for Law Enforcement.......................... 83
Multipoint Wiretapping............................... 83
Crime Identification Technology Act.................. 84
National Salvage Motor Vehicle Consumer Protection
Act of 1997........................................ 85
Law Enforcement Advertisement Clarification Act of
1997............................................... 86
Violent Crime............................................ 86
Mandatory Minimum Sentences for Criminals Using
Firearms........................................... 86
Veterans' Cemetery Protection Act of 1997............ 87
Domestic Violence Misdemeanor and Firearms Ownership. 88
Witness Protection and Interstate Relocation Act of
1997............................................... 90
RICO Reform and Nonviolent Advocacy Groups........... 91
Prohibition on Financial Transactions with Countries
Supporting Terrorism Act of 1997................... 92
Protecting and Supporting Police......................... 93
Care for Police Survivors Act of 1998................ 93
Bulletproof Vests Partnership Grants Act............. 94
Police, Fire, and Emergency Officers Educational
Assistance Act..................................... 94
Correction Officers Health and Safety Act of 1998.... 95
Rural Law Enforcement Assistance Act................. 96
Interstate Carrying of Concealed Firearms by Law
Enforcement Officials and the Community Protection
Act of 1997........................................ 96
Medal of Valor....................................... 98
Law Enforcement Officers Who Have Died in the Line of
Duty Should Be Honored, Recognized, and Remembered
for Their Great Sacrifice.......................... 98
Protecting the Public From Fraud......................... 99
Cellular Telephone Protection Act.................... 99
Clone Pager Authorization Act of 1996................ 101
Telemarketing Fraud Prevention....................... 101
Identify Theft and Assumption Deterrence Act......... 102
Caring for Victims....................................... 103
Crime Victims with Disabilities Awareness Act........ 103
Victims Rights Clarification Act..................... 103
Traffic Stops Statistics Act of 1997................. 105
Title I of the Omnibus Crime Control and Safe Streets
Act of 1968........................................ 105
Internet Gambling........................................ 106
Department of Justice.................................... 107
Federal Prisons of Industries........................ 107
Prisoner Service Opportunity Act of 1997............. 109
United States Marshals Service Improvement Act of
1997............................................... 109
Private Security Officer Quality Assurance Act of
1997............................................... 109
To Limit the Jurisdiction of the Federal Courts with
Respect to Prison Release Orders................... 110
General Oversight and Other Subcommittee Hearings........ 110
FBI Oversight........................................ 110
Implementation of the Communications Assistance for
Law Enforcement Act of 1994........................ 111
Ecoterrorism......................................... 112
Subcommittee on Commercial and Administrative Law:
Tabulation of subcommittee legislation and activity...... 113
Jurisdiction of the Subcommittee......................... 113
Legislative Activities................................... 114
Administrative Law/Practice and Procedure (Regulatory
Reform)............................................ 114
H.R. 1544, the Federal Agency Compliance Act..... 114
H.R. 2440, Technical Amendment in Section 10,
Title 9, United States Code.................... 115
H.R. 4049, Regulatory Fair Warning Act of 1998... 115
H.R. 4096, Taxpayer's Defense Act................ 115
Bankruptcy........................................... 116
H.R. 764, the Bankruptcy Amendments of 1997, and
H.R. 120, the Bankruptcy Law Technical
Corrections Act of 1997........................ 116
H.R. 1596, the Bankruptcy Judgeship Act of 1997.. 118
H.R. 2592, the Private Trustee Reform Act of
1997, and Review of Post-Confirmation Fees in
Chapter 11 Cases............................... 119
H.R. 2604, the Religious Liberty and Charitable
Donation Protection Act of 1997, and H.R. 2611,
the Religious Fairness in Bankruptcy Act of
1997........................................... 121
H.R. 3150, the Bankruptcy Reform Act of 1998,
H.R. 2500, the Responsible Borrower Protection
Bankruptcy Act, and H.R. 3146, the Consumer
Lenders and Borrowers Bankruptcy Accountability
Act of 1998.................................... 123
H.R. 4239 and H.R. 4393, the Financial Contract
Netting Improvement Act of 1998................ 129
H.R. 4831, Temporary Reenactment of Chapter 12,
Bankruptcy Relief for Family Farmers........... 130
State Taxation....................................... 131
H.R. 865 and H.R. 874, State Taxation of
Employees at Certain Federal Facilities........ 131
H.R. 1054, Internet Tax Freedom Act.............. 131
H.R. 4572, a Bill Clarifying that the Limitation
on State Income Taxation of Governmental
Pension Income Applies to Possessions of the
United States.................................. 133
Interstate Compacts.................................. 133
H.J. Res. 91--The Apalachicola-Chattahoochee-
Flint River Basin Compact (ACF)................ 133
H.J. Res. 92--The Alabama-Coosa-Tallapoosa River
Basin Compact (ACT)............................ 134
H.J. Res. 95--The Chickasaw Trail Economic
Development Compact............................ 134
H.J. Res. 96--Amendments to the Washington
Metropolitan Area Transit Regulation Compact... 135
S. 1134--Interstate Forest Fire Protection
Compact........................................ 135
S.J. Res. 35--The Pacific Northwest Emergency
Management Arrangement......................... 136
S.J. Res. 51--The Potomac Highlands Airport
Authority Compact.............................. 136
Miscellaneous........................................ 137
H.R. 872, Biomaterials Access Assurance Act of
1998........................................... 137
H.R. 1494, Apprehension of Tainted Money Act..... 138
H.R. 3032, Construction Subcontractors Payment
Protection Enhancement Act of 1998............. 139
H.R. 4243 and H.R. 4857, Government Waste, Fraud,
and Error Reduction Act of 1998................ 140
Oversight Activities..................................... 140
Administrative Law, Practice and Procedures.......... 140
Administrative Crimes and Quasi-Crimes........... 140
Administrative Taxation: The FCC's Universal
Service Tax.................................... 141
Congressional Review Act......................... 141
EPA's Rulemakings on National Ambient Air Quality
Standards for Particulate Matter and Ozone..... 142
Oversight of the Executive Office for United
States Attorneys, the Environment and Natural
Resources Division of the Department of
Justice, and the Executive Office for United
States Trustees................................ 143
Role of Congress in Monitoring Administrative
Rulemaking..................................... 144
Bankruptcy........................................... 144
Status Report from the National Bankruptcy Review
Commission and Operation of the Bankruptcy
System......................................... 144
National Bankruptcy Review Commission Report..... 145
Subcommittee on Courts and Intellectual Property:
Tabulation and disposition of bills referred to the
Subcommittee........................................... 147
Jurisdiction of the Subcommittee......................... 147
Legislative Activities................................... 148
Courts............................................... 148
The Judicial Reform Act of 1997, H.R. 1252....... 148
To amend the Webb-Kenyon Act to allow any State,
territory, or possession of the United States
to bring an action in Federal Court to enjoin
violations of that Act or to enforce the laws
of such State, territory, or possession with
respect to such violations, H.R. 1063.......... 149
Private Property Rights Implementation Act, H.R.
1534........................................... 149
Alternative Dispute Resolution Act, H.R. 3528.... 151
Federal Courts Improvement Act, H.R. 2294........ 152
To amend title 28 of the United States Code
regarding enforcement of child custody orders,
H.R. 4164...................................... 152
Class Action Jurisdiction Act of 1998, H.R. 3789. 153
To provide that a person closely related to a
judge of a court exercising judicial power
under Article III of the United States
Constitution (other than the Supreme Court) may
not be appointed as a judge of the same court,
H.R. 3926 (S. 1892)............................ 154
Protecting American Small Business Trade Act of
1998, H.R. 3578................................ 154
Veterans Employment Opportunities Act of 1997,
H.R. 240....................................... 155
Peremptory Challenge Act of 1997, H.R. 520 (H.R.
1252).......................................... 155
To establish a Commission on Structural
Alternatives for the Federal Courts of Appeals,
H.R. 908 (H.R. 2267)........................... 155
To amend title 28 of the United States Code to
allow an interlocutory appeal from a court
order determining whether an action may be
maintained as a class action, H.R. 660 (H.R.
1252).......................................... 156
Judicial Disciplinary Proceedings Act of 1997,
H.R. 702 (H.R. 1252)........................... 156
To adjust, and provide a procedure for the future
adjustment of, the salaries of Federal judges,
H.R. 875 (H.R. 1252)........................... 156
To amend chapter 3 of title 28 of the United
States Code to provide for the appointment in
each United States Circuit Court of Appeals, of
at least one resident of each state in such
circuit, H.R. 932 (H.R. 2267).................. 156
To provide for the conversion of existing
temporary United States district judgeships to
permanent status, H.R. 977 (S. 996)............ 157
State Initiative Fairness Act, H.R. 1170 (H.R.
1252).......................................... 157
Sunshine in the Courtroom Act, H.R. 1280 (H.R.
1252).......................................... 157
To reauthorize the program established under
chapter 44 of title 28 of the United States
Code relating to arbitration, H.R. 1581 (S.
996)........................................... 158
To amend title 28 of the United States Code to
create two divisions in the Eastern Judicial
District of Louisiana, H.R. 1790............... 158
Multiparty, Multiforum Jurisdiction Act of 1997,
H.R. 1857 (H.R. 1252).......................... 158
To amend title 28 of the United States Code to
transfer Schuylkill County, Pennsylvania, from
the Eastern Judicial District of Pennsylvania
to the Middle Judicial District of
Pennsylvania, H.R. 2123 (H.R. 2294)............ 159
Judicial Conduct Reform Act of 1997, H.R. 2739
(H.R. 4328).................................... 159
Florida Federal Judgeship Act of 1998, H.R. 3154
(H.R. 2294).................................... 159
Alternative Dispute Resolution and Settlement
Encouragement Act, H.R. 903 (H.R. 3528)........ 159
Intellectual Property.................................... 159
Copyrights........................................... 159
WIPO Treaties Implementation Act, H.R. 2281...... 159
Computer Maintenance Competition Assurance Act of
1997, H.R. 72 (H.R. 2281)...................... 162
Online Copyright Liability Limitation Act, H.R.
2180 (H.R. 2281)............................... 162
No Electronic Theft Act, H.R. 2265............... 162
Copyright Term Extension Act, H.R. 2589 (S. 505). 163
Fairness in Music Licensing Act, H.R. 789 (S.
505)........................................... 163
To make technical amendments to certain
provisions of title 17 of the United States
Code, H.R. 672................................. 165
To amend title 17 of the United States Code to
provide that the distribution before January 1,
1978, of a phonorecord shall not for any
purpose constitute a publication of the musical
work embodied therein, H.R. 1967 (H.R. 672).... 165
Multichannel Video Competition and Consumer
Protection Act, H.R. 2921...................... 166
Copyright Compulsory License Improvement Act,
H.R. 3210...................................... 167
Patents.............................................. 168
21st Century Patent System Improvement Act, H.R.
400............................................ 168
Patent and Trademark Office Surcharge Extension
Act of 1997, H.R. 673 (H.R. 400)............... 169
Patent Term Restoration Act, H.R. 811............ 169
Patent and Trademark Office Reauthorization Act,
H.R. 3723...................................... 170
Plant Patents Amendments Act, H.R. 1197.......... 170
Technology Transfer Commercialization Act of
1997, H.R. 2544/To improve the ability of
federal agencies to license federally owned
inventions, H.R. 4859.......................... 171
To provide for the enactment of user fees
proposed by the President in his budget
submission under section 1105(a) of title 31,
United States Code, for fiscal year 1999, H.R.
3989........................................... 171
Trademarks........................................... 171
Madrid Protocol Implementation Act, H.R. 567..... 171
Trade Dress Protection Act, H.R. 3163............ 172
Trademark Anticounterfeiting Act of 1998, H.R.
3891........................................... 172
Trademark Law Treaty Implementation Act, H.R.
1661 (S. 2193)................................. 173
To amend the Trademark Act of 1946 with respect
to the dilution of famous marks, H.R. 3119..... 174
Registration of Insignia of American Indian
Tribes, S. 2193 and H.R. 4328.................. 174
International Expropriation of Registered Marks,
H.R. 4328...................................... 174
Next Generation Internet Research Act of 1998,
H.R. 3332 (S. 1609)............................ 175
Other Intellectual Property Rights................... 176
Security and Freedom Through Encryption (SAFE)
Act, H.R. 695.................................. 176
Vessel Hull Design Protection Act, H.R. 2696..... 178
Collections of Information Antipiracy Act, H.R.
2652........................................... 178
Oversight Activities................................. 179
Judicial Discipline and Misconduct............... 179
Music Licensing in Restaurants and Retail and
Other Establishments........................... 180
Electronic Copyright Piracy...................... 180
Effect of Pre-1978 Distribution of Recordings
Containing Musical Compositions................ 180
Copyright Term Extension......................... 181
Copyright Per Program Licenses................... 181
Copyright Licensing Regimes Covering
Retransmission of Broadcast Signals............ 181
Internet Domain Name Trademark Protection........ 182
Attorneys Fees and the Proposed Global Tobacco
Settlement..................................... 182
Mass Torts and Class Action Lawsuits............. 182
U.S. Patent and Trademark Office................. 182
U.S. Copyright Office............................ 183
Celebrity Imposters/Federal Right of Publicity... 183
State Commodity Commissions and Product
Certification.................................. 183
International Expropriation of Registered Marks.. 184
Patent Extension Review.......................... 184
U.S. Judicial Conference, Administrative Office
of the United States Courts, and the Federal
Judicial Center................................ 184
Summary of Oversight Plan and Implementation............. 185
Article III Courts................................... 185
The U.S. Copyright System............................ 185
The U.S. Patent and Trademark Systems................ 185
Subcommittee on Immigration and Claims:
Tabulation and disposition of bills referred to the
Subcommittee........................................... 187
Jurisdiction of the Subcommittee......................... 187
Public Legislation Enacted Into Law...................... 188
Immigration.......................................... 188
S. 670--U.S. Citizenship for Children Born Abroad 188
S. 1198, the Religious Workers Act of 1997....... 188
H.R. 2464, Exempting Internationally Adopted
Children 10 and Under from the Immunization
Requirement of the Immigration and Nationality
Act............................................ 189
Nicaraguan Adjustment and Central American Relief
Act of 1997.................................... 189
Expanded War Crimes Act of 1997.................. 191
Sunset of Section 245(i) of the Immigration and
Nationality Act................................ 191
Fingerprints for Criminal Background Checks...... 192
Criminal Background Checks for Naturalization
Applications................................... 193
Discipline of INS Employees...................... 193
Philippine Army, Scouts, and Guerilla Veterans of
World War II Naturalization Act of 1997........ 193
Special Immigrant Status for Dependents on
Juvenile Courts................................ 193
S. 1161--Authorization of Appropriations for
Refugee Assistance............................. 194
H.R. 1493, to Require the Attorney General to
Establish a Program in Local Prisons to
Identify, Prior to Arraignment, Criminal Aliens
and Aliens Who Are Unlawfully Present in the
United States.................................. 194
S. 1178, Extending the Visa Waiver Pilot Program. 195
H.R. 4658, Extending the Deadline for
Implementation of an Automated Entry-Exit
Control System under Section 110 of the Illegal
Immigration Reform and Immigrant Responsibility
Act of 1996.................................... 196
Amendment to Section 110 of the Illegal
Immigration Reform and Immigrant Responsibility
Act of 1996 Regarding Implementation of an
Automated Entry-Exit Control System............ 196
The American Competitiveness and Workforce
Improvement Act of 1998........................ 197
Background................................... 197
TheG H-1B Visa Program Prior to the
American Competitiveness and Workforce
Improvement Act of 1998.................... 197
Labor Department Concerns................ 198
TheG State of the Labor Market for
Information Technology Workers............. 198
The Act...................................... 199
Procedural History........................... 200
NATO Special Immigrant Amendments................ 201
Haitian Refugee Immigration Fairness Act of 1998. 202
Modification of Border Crossing Card Program..... 202
Investor Visas................................... 203
Injury and Death-Related Benefits for Immigration
Officers....................................... 203
Exemption of Inspection Fees for Cruise Ship
Passengers..................................... 203
Exemption of Certain Iraqi Asylees from
Adjustment Cap................................. 203
Denial of Visas to Haitians Involved in Certain
Killings....................................... 204
Sense of Congress Regarding U.S. Residence
Obtained by El Salvadoran Killers.............. 204
Consular Authorities of the Department of State.. 204
Refugees and Migration........................... 204
Limitation on Funding for Regulations Regarding
State Driver's License Integrity............... 205
H.R. 2431, Freedom from Religious Persecution Act 205
H.R. 4293, the Irish Peace Process Cultural and
Training Program Act........................... 206
H.R. 4821, Extending into Fiscal Year 1999 the
Visa Processing Period for Diversity Applicants
Whose Visa Processing Was Suspended Due to
Embassy Bombings............................... 207
Claims............................................... 207
H.R. 1023, the Ricky Ray Hemophilia Relief Fund
Act of 1998.................................... 207
Action on Other Public Legislation....................... 208
Legislation Passed by the House...................... 208
H.R. 2027, Regarding Canadian Border Boat Landing
Permits........................................ 208
H.R. 2570, the Forced Abortion Condemnation Act.. 209
H.R. 2920, Amending Section 110 of the Illegal
Immigration Reform and Immigrant Responsibility
Act of 1996 as to Implementation of an
Automated Entry-Exit Control System............ 209
H.R. 967, Requiring the Denial of Visas to
Chinese Government Officials Responsible for
Religious Persecution.......................... 210
H.R. 992, the Tucker Act Shuffle Relief Act...... 210
H.R. 2759, the Health Professional Shortage Area
Nursing Relief Act............................. 211
Legislation Rejected by the House of Representatives..... 212
H.R. 1428, the Voter Eligibility Verification Pilot
Program Act........................................ 212
Legislation Passed by the Judiciary Committee............ 213
H.R. 371, the Hmong Veterans Naturalization Act of
1997............................................... 213
Legislation Passed by the Subcommittee................... 214
H.R. 2413, the Immigration Technical Corrections Act
of 1997............................................ 214
H.R. 3410, the Temporary Agricultural Worker Act of
1998............................................... 214
H.R. 2837, Citizenship Integrity and Backlog
Reduction Act...................................... 215
H.R. 4264, Restructuring the Immigration and
Naturalization Service............................. 216
Hearings on Public Legislation not Processed............. 216
Immigration.......................................... 216
H.R. 231 and H.R. 471............................ 216
H.R. 7........................................... 217
H.R. 1543, H.R. 2172............................. 217
H.R. 225......................................... 217
Claims............................................... 217
H.R. 3022........................................ 217
H.R. 3539........................................ 218
Federal Charters......................................... 218
Subcommittee Policy on New Federal Charters.......... 218
Amendment to the American Legion Charter............. 219
S. 1759, Federal Charter for the American GI Forum... 219
Private Claims and Private Immigration Legislation....... 220
Oversight Activities..................................... 220
Immigration.......................................... 220
Implementation of Title III of the Illegal
Immigration Reform and Immigrant Responsibility
Act of 1996.................................... 220
Deception of a Congressional Task Force
Delegation to Miami District of INS (Krome).... 221
Improper Granting of U.S. Citizenship Without
Conducting Criminal Background Checks.......... 221
Border Security and Deterring Illegal Entry into
the U.S........................................ 221
Safeguarding the Integrity of the Naturalization
Process........................................ 222
Visa Fraud and Immigration Benefits Application
Fraud.......................................... 222
Visa Waiver Pilot Program........................ 222
Institutional Hearing Program.................... 223
Temporary Agricultural Work Visa Program......... 223
Final Report of the Commission on Immigration
Reform......................................... 223
Immigration and the American Workforce for the
21st Century................................... 223
Alternative Proposals to Restructure the
Immigration and Naturalization Service......... 224
Alternative Technologies for Implementation of
Section 110 of the Illegal Immigration Reform
and Immigrant Responsibility Act of 1996 at
Land Borders................................... 224
Problems Related to Criminal Aliens in Utah...... 224
Oversight Investigation of the Death of Esequiel
Hernandez, Jr.................................. 225
Refugee Consultations............................ 225
I. Fiscal Year 1998.......................... 225
II. Fiscal Year 1999......................... 226
Claims............................................... 226
Health Care Initiatives Pursued Under False
Claims Act that Impact Hospitals............... 226
Subcommittee on the Constitution:
Tabulation and disposition of bills referred to the
Subcommittee........................................... 229
Jurisdiction of the Subcommittee......................... 229
Legislation.............................................. 229
Assisted Suicide..................................... 229
Child Custody Protection Act......................... 230
Citizen Protection Act............................... 231
Reform of Laws Governing Lobbying.................... 231
Fair Housing......................................... 231
Racial and Gender Preferences--The Civil Rights Act.. 232
Religious Freedom.................................... 232
Partial-Birth Abortion Ban Act....................... 233
U.S. Commission on Civil Rights...................... 234
Displaying the Ten Commandments...................... 234
Contributions of Martin Luther King, Jr.............. 235
Flag................................................. 235
Emancipation of African Slaves in Danish West Indies. 235
Constitutional Amendments................................ 235
Term Limits.......................................... 235
Flag Protection...................................... 236
Religious Freedom Amendment.......................... 236
Tax Limitation Amendment............................. 237
Electoral College.................................... 237
Alternatives to Article V............................ 237
Campaign Spending.................................... 238
Oversight Activities..................................... 238
Impeachment.......................................... 238
United States Commission on Civil Rights............. 238
Clinton Administration Adarand Review................ 239
Respective Roles of Congress and Article III Courts.. 240
Private Property Rights.............................. 240
The First Amendment and Campaign Finance Reform...... 240
Americans with Disabilities Act...................... 241
Union Calendar No. 486
105th Congress Report
2d Session HOUSE OF REPRESENTATIVES 105-845
=======================================================================
REPORT ON THE ACTIVITIES OF THE COMMITTEE ON THE JUDICIARY
_______
January 2, 1999.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Hyde, from the Committee on the Judiciary, submitted the following
R E P O R T
Jurisdiction of the Committee on the Judiciary
The jurisdiction of the Committee on the Judiciary is set
forth in Rule X, 1.(j) of the rules of the House of
Representatives for the 105th Congress:
* * * * * * *
Rule X.--Establishment and Jurisdiction of Standing Committees
THE COMMITTEES AND THEIR JURISDICTION
1. There shall be in the House the following standing
committees, each of which shall have the jurisdiction and
related functions assigned to it by this clause and clauses 2,
3, and 4; and all bills, resolutions, and other matters
relating to subjects within the jurisdiction of any standing
committee as listed in this clause shall (in accordance with
and subject to clause 5) be referred to such committees, as
follows:
* * * * * * *
(j) Committee on the Judiciary
(1) The judiciary and judicial proceedings, civil and
criminal.
(2) Administrative practice and procedure.
(3) Apportionment of Representatives.
(4) Bankruptcy, mutiny, espionage, and
counterfeiting.
(5) Civil liberties.
(6) Constitutional amendments.
(7) Federal courts and judges, and local courts in
the Territories and possessions.
(8) Immigration and naturalization.
(9) Interstate compacts, generally.
(10) Measures relating to claims against the United
States.
(11) Meetings of Congress, attendance of Members and
their acceptance of incompatible offices.
(12) National penitentiaries.
(13) Patents, the Patent Office, copyrights, and
trademarks.
(14) Presidential succession.
(15) Protection of trade and commerce against
unlawful restraints and monopolies.
(16) Revision and codification of the Statutes of the
United States.
(17) State and territorial boundaries.
(18) Subversive activities affecting the internal
security of the United States.
Tabulation of Legislation and Activity
----------
LEGISLATION REFERRED TO COMMITTEE
Public Legislation:
House bills................................................... 714
House joint resolutions....................................... 95
House concurrent resolutions.................................. 30
House resolutions............................................. 28
------
867
======
Senate bills.................................................. 35
Senate joint resolutions...................................... 3
------
38
======
Subtotal.................................................... 905
======
Private Legislation:
House bills (claims).......................................... 33
House bills (copyrights)...................................... 1
House bills (immigration)..................................... 35
House bills (patents)......................................... 1
House resolutions (claims).................................... 1
------
71
======
Senate bills (immigration).................................... 6
------
77
======
Subtotal.................................................... 982
======
ACTION ON LEGISLATION NOT REFERRED TO COMMITTEE
Originated for House action:
House resolutions............................................. 2
Amended by House with Committee language:
House bills................................................... 3
Senate bills.................................................. 1
Held at desk for House action:
Senate bills.................................................. 13
Conference appointments:
House bills................................................... 2
------
21
======
FINAL ACTION
House concurrent resolutions approved (public)................ 1
House resolutions approved (public)........................... 10
Public Laws................................................... 70
Private Laws.................................................. 10
Hearings
Serial No. and Title
__________
1. Proposing a Balanced Budget Amendment to the Constitution of the
United States. Committee on the Judiciary. February 3, 1997. (H.J. Res.
1).
2. Implementation of Title III of the Illegal Immigration Reform
and Immigrant Responsibility Act of 1996. Subcommittee on Immigration
and Claims. February 11, 1997.
3. 21st Century Patent System Improvement Act; Patent and Trademark
Office Surcharge Extension Act of 1997; and Patent Term Restoration Act
of 1997. Subcommittee on Courts and Intellectual Property. February 26,
1997. (H.R. 400, H.R. 673, and H.R. 811).
4. Implementation of the Church Arson Prevention Act of 1996.
Committee on the Judiciary. March 19, 1997.
5. Congressional Review Act. Subcommittee on Commercial and
Administrative Law. March 6, 1997.
6. Volunteer Liability Legislation. Committee on the Judiciary.
April 23, 1997. (H.R. 911 and H.R. 1167).
7. Madrid Protocol Implementation Act; and Trademark Law Treaty
Implementation Act. Subcommittee on Courts and Intellectual Property.
May 22, 1997. (H.R. 567 and H.R. 1661).
8. State Taxation of Employees at Certain Federal Facilities.
Subcommittee on Commercial and Administrative Law. April 17, 1997.
(H.R. 865 and H.R. 874).
9. Security and Freedom Through Encryption (SAFE) Act. Subcommittee
on Courts and Intellectual Property. March 20, 1997. (H.R. 695).
10. Product Liability Reform. Committee on the Judiciary. April 10,
1997.
11. Deception of a Congressional Task Force Delegation to Miami
District of the Immigration and Naturalization Service. Subcommittee on
Immigration and Claims. February 27, 1997.
12. Operation of the Bankruptcy System and Status Report from the
National Bankruptcy Review Commission. Subcommittee on Commercial and
Administrative Law. April 16, 1997.
13. Bankruptcy Amendments of 1997; and Bankruptcy Law Technical
Corrections Act of 1997. Subcommittee on Commercial and Administrative
Law. April 30, 1997. (H.R. 764 and H.R. 120).
14. Improper Granting of U.S. Citizenship Without Conducting
Criminal Background Checks. Subcommittee on Immigration and Claims of
the Committee on the Judiciary jointly with the Subcommittee on
National Security, International Affairs, and Criminal Justice of the
Committee on Government Reform and Oversight. March 5, 1997. (Committee
on Government Reform and Oversight Serial No. 105-21).
15. Free Speech and Campaign Finance Reform. Subcommittee on the
Constitution. February 27, 1997.
16. Apprehension of Tainted Money Act of 1997. Subcommittee on
Commercial and Administrative Law. May 14, 1997. (H.R. 1494).
17. Bankruptcy Judgeship Act of 1997. Subcommittee on Commercial
and Administrative Law. June 19, 1997. (H.R. 1596).
18. Grassroots Solutions to Youth Crime. Committee on the
Judiciary. May 7, 1997.
19. Antitrust Aspects of Electricity Deregulation. Committee on the
Judiciary. June 4, 1997.
20. Fair Housing Reform and Freedom of Speech Act of 1997.
Subcommittee on the Constitution. April 17, 1997. (H.R. 589).
21. Federal Agency Compliance Act. Subcommittee on Commercial and
Administrative Law. May 22, 1997. (H.R. 1544).
22. Civil Asset Forfeiture Reform Act. Committee on the Judiciary.
June 11, 1997. (H.R. 1835).
23. Citizenship Reform Act of 1997; and Voter Eligibility
Verification Act. Subcommittee on Immigration and Claims. June 25,
1997. (H.R. 7 and H.R. 1428).
24. Hmong Veterans' Naturalization Act of 1997; and Canadian Border
Boat Landing Permit Requirements. Subcommittee on Immigration and
Claims. June 26, 1997. (H.R. 371 and H.R. 2027).
25. Internet Tax Freedom Act. Subcommittee on Commercial and
Administrative Law. July 17, 1997. (H.R. 1054).
26. Visa Waiver Pilot Program. Subcommittee on Immigration and
Claims. June 17, 1997.
27. Judicial Reform Act of 1997. Subcommittee on Courts and
Intellectual Property. May 14, 1997. (H.R. 1252).
28. Proposals to Provide Rights to Victims of Crime. Committee on
the Judiciary. June 25, 1997. (H.J. Res. 71 and H.R. 1322).
29. Judicial Misconduct and Discipline. Subcommittee on Courts and
Intellectual Property. May 15, 1997.
30. Limiting Terms of Office for Members of the U.S. House of
Representatives and U.S. Senate. Subcommittee on the Constitution.
January 22, 1997.
31. Gang-Related Witness Intimidation and Retaliation. Subcommittee
on Crime. June 17, 1997.
32. Border Security and Deterring Illegal Entry into the United
States. Subcommittee on Immigration and Claims. April 23, 1997.
33. WIPO Copyright Treaties Implementation Act; and On-line
Copyright Liability Limitation Act. Subcommittee on Courts and
Intellectual Property. September 16, 17, 1997. (H.R. 2281 and H.R.
2180).
34. Biomaterials Access Assurance Act of 1997. Subcommittee on
Commercial and Administrative Law. June 12, 1997. (H.R. 872).
35. EPA's Rulemakings on the National Ambient Air Quality Standards
for Particulate Matter and Ozone. Subcommittee on Commercial and
Administrative Law. July 29, 1997.
36. Safeguarding the Integrity of the Naturalization Process.
Subcommittee on Immigration and Claims. April 30, 1997.
37. Legislation Concerning Immigrant Issues. Subcommittee on
Immigration and Claims. May 13, 1997. (H.R. 231, H.R. 429, H.R. 471,
and H.R. 1493).
38. Musical Licensing in Restaurants and Retail and Other
Establishments. Subcommittee on Courts and Intellectual Property. July
17, 1997.
39. Pre-1978 Distribution of Recordings Containing Musical
Compositions; Copyright Term Extension; and Copyright Per Program
Licenses. Subcommittee on Courts and Intellectual Property. June 27
(Nashville, Tennessee), 1997.
40. Seeking Results from the Department of Justice. Committee on
the Judiciary. September 30, 1997.
41. State of Competition in the Cable Television Industry.
Committee on the Judiciary. September 24, 1997.
42. Visa Fraud and Immigration Benefits Application Fraud.
Subcommittee on Immigration and Claims. May 20, 1997.
43. The First Amendment and Restrictions on Issue Advocacy.
Subcommittee on the Constitution. September 18, 1997.
44. The FBI Investigation into the Saudi Arabia Bombing and Foreign
FBI Investigations. Subcommittee on Crime. February 12, 1997.
45. Prohibition on Financial Transactions With Countries Supporting
Terrorism Act of 1997. Subcommittee on Crime. June 10, 1997. (H.R.
748).
46. Civil Rights Division of the U.S. Department of Justice.
Subcommittee on the Constitution. May 20, 1997.
47. Copyright Piracy and H.R. 2265, the No Electronic Theft (NET)
Act. Subcommittee on Courts and Intellectual Property. September 11,
1997. (H.R. 2265).
48. National Bankruptcy Review Commission Report. Subcommittee on
Commercial and Administrative Law. November 13, 1997.
49. Temporary Agricultural Work Visa Programs. Subcommittee on
Immigration and Claims. September 24, 1997.
50. H.J. Res. 54: Proposing an Amendment to the Constitution of the
United States Authorizing Congress to Prohibit the Physical Desecration
of the Flag of the United States. Subcommittee on the Constitution.
April 30, 1997. (H.J. Res. 54).
51. The Application of the Antitrust Laws to the Tennessee Valley
Authority and the Federal Power Marketing Administrations. Committee on
the Judiciary. October 22, 1997.
52. Private Trustee Reform Act of 1997 and Review of Post-
Confirmation Fees in Chapter 11 Cases. Subcommittee on Commercial and
Administrative Law. October 9, 1997. (H.R. 2592).
53. Amendment to the Webb-Kenyon Act; and the Private Property
Implementation Act of 1997. Subcommittee on Courts and Intellectual
Property. September 25, 1997. (H.R. 1063 and H.R. 1534).
54. The Role of Congress in Monitoring Administrative Rulemaking.
Subcommittee on Commercial and Administrative Law. September 25, 1997.
(H.R. 1036 and H.R. 1704).
55. Protecting Religious Freedom after Boerne v. Flores. (Parts 1,
2, and 3). Subcommittee on the Constitution. July 14, 1997, February
26, March 26, 1998.
56. Exclusions from the United States of Certain Officials from the
Chinese Government Involved in the Persecution of Religious Believers;
and Issue of Eligibility for Student Visas. Subcommittee on Immigration
and Claims. July 24, 1997. (H.R. 967, H.R. 1543, and H.R. 2172).
57. The Antitrust Enforcement Agencies: The Antitrust Division of
the Department of Justice and the Bureau of Competition of the Federal
Trade Commission. Committee on the Judiciary. November 5, 1997.
58. The Activities of the Federal Bureau of Investigation. (Part
1). Subcommittee on Crime. May 13, 1997. (See also Serial Nos. 59 and
60).
59. The Activities of the Federal Bureau of Investigation. (Part
2). Subcommittee on Crime. June 5, 1997. (See also Serial Nos. 58 and
60).
60. The Activities of the Federal Bureau of Investigation. (Part
3). Subcommittee on Crime. July 30, 1998. (See also Serial Nos. 58 and
59).
61. United States Department of Justice. Committee on the
Judiciary. October 15, 1997.
62. Internet Domain Name Trademark Protection. (Part 1).
Subcommittee on Courts and Intellectual Property. November 5, 1997.
63. Background and History of Impeachment. Subcommittee on the
Constitution. November 9, 1998.
64. Application of the Americans with Disabilities Act to Medical
Licensure and Judicial Officers. Subcommittee on the Constitution. May
22, 1997
65. Religious Liberty and Charitable Donation Protection Act of
1997; and the Religious Fairness in Bankruptcy Act of 1997.
Subcommittee on Commercial and Administrative Law. February 12, 1998.
(H.R. 2604 and H.R. 2611).
95. Partial-Birth Abortion: The Truth. Subcommittee on the
Constitution of the House Committee on the Judiciary jointly with the
Senate Committee on the Judiciary. March 11, 1997. (Oversight/S. 6 and
H.R. 929). (Senate Committee on the Judiciary Serial No. J-105-3).
* Civil Liability Portions of the Proposed Tobacco Settlement.
Committee on the Judiciary. February 5, 1998.
---------------------------------------------------------------------------
* Denotes material not assigned a serial number as of filing date.
---------------------------------------------------------------------------
* Department of Justice Appropriation Authorization Act, Fiscal
Years 1999, 2000, and 2001. Committee on the Judiciary. March 11, 1998.
(H.R. 3303).
* State of Competition in the Airline Industry. Committee on the
Judiciary. May 19, 1998.
* Protection From Personal Intrusion Act and the Privacy Protection
Act of 1998. Committee on the Judiciary. May 21, 1998. (H.R. 2448 and
H.R. 3224).
* Effects of Consolidation on the State of Competition in the
Financial Services Industry. Committee on the Judiciary. June 3, 1998.
* Effects of Consolidation on the State of Competition in the
Telecommunications Industry. Committee on the Judiciary. June 24, 1998.
* Hate Crimes Prevention Act of 1997. Committee on the Judiciary.
July 22, 1998. (H.R. 3081).
* Quality Health-Care Coalition Act of 1998. Committee on the
Judiciary. July 29, 1998. (H.R. 4277).
* Inquiry Pursuant to House Resolution 581 into Whether Grounds
Exist for the Impeachment of William Jefferson Clinton, President of
the United States. Committee on the Judiciary. November 19, December 8,
9, 1998.
* Consequences of Perjury and Related Crimes. Committee on the
Judiciary. December 1, 1998.
* Administration's Anti-Gang and Youth Violence Initiative.
Subcommittee on Crime of the Committee on the Judiciary and the
Subcommittee on Early Childhood, Youth and Families of the Committee on
Education and the Workforce, jointly. February 26, 1997.
* Firearms Prohibitions Applicable by Reason of Domestic Violence.
Subcommittee on Crime. March 5, 1997. (H.R. 26 and section 658 of H.R.
445).
* Reforming Juvenile Justice in America. Subcommittee on Crime.
March 20, 1997.
* Federal Counter-Narcotic Efforts in the Caribbean. Subcommittee
on Crime. April 3, 1997 (San Juan, Puerto Rico).
* Interstate Carrying of Concealed Firearms by Law Enforcement
Officials; the Community Protection Act of 1997, to provide for a
national concealed firearms standard, and the Law Enforcement and
Community Protection Act of 1997. Subcommittee on Crime. July 22, 1997.
(H.R. 218 and H.R. 339).
* Money Laundering. Subcommittee on Crime. July 24, 1997.
* Activities of the Federal Bureau of Investigation. (Part III).
Subcommittee on Crime. July 30, 1997.
* Cellular Telephone Fraud. Subcommittee on Crime. September 11,
1997.
* Criminal Asset Forfeiture. Subcommittee on Crime. September 18,
1997.
* Medical Marijuana Referenda Movement in America. Subcommittee on
Crime. October 1, 1997.
* Anatomy of a Colombian Drug Trafficking Operation in the United
States. Subcommittee on Crime. October 16, 1997.
* Implementation of the Communications Assistance for Law
Enforcement Act of 1994. Subcommittee on Crime. October 23, 1997.
* Cooperation between Federal Prison Industries and the Private
Sector. Subcommittee on Crime. October 30, 1997.
* Combating Crimes Against Children Facilitated by the Internet.
Subcommittee on Crime. November 7, 1997.
* Internet Gambling Prohibition Act of 1997. Subcommittee on Crime.
February 4, and June 24, 1998. (H.R. 2380).
* Bail Bond Fairness Act of 1997. Subcommittee on Crime. March 12,
1998. (H.R. 2134).
* Rural Law Enforcement Assistance Act of 1997 and Bulletproof Vest
Partnership Grant Act of 1997. Subcommittee on Crime. March 19 and 25,
1998. (H.R. 1524 and H.R. 2829).
* Correction Officers Health and Safety Act of 1997. Subcommittee
on Crime. March 26, 1998. (H.R. 2070).
* Protection and Privacy of Children. Subcommittee on Crime. April
30, 1998. (H.R. 305, H.R. 1972, H.R. 2173, H.R. 2122, H.R. 2488, H.R.
2815, H.R. 3185, H.R. 3494, H.R. 3729 and H.Con.Res. 125).
* Congressional Recognition of Acts of Exceptional Valor by Public
Safety Officers. Subcommittee Crime. May 14, 1998.
* Ecoterrorism Committed by Radical Environmental Organizations.
Subcommittee on Crime. June 9, 1998.
* Federal Bureau of Investigation's Implementation of a National
Instant-Check System for Screening Prospective Gun Buyers. Subcommittee
on Crime. June 11, 1998.
* Free Market Prison Industries Reform Act of 1998 and the Federal
Prison Industries Competition in Contracting Act of 1997. Subcommittee
on Crime. June 25, 1998. (H.R. 4100 and H.R. 2758).
* Civil Application of the Racketeer Influenced and Corrupt
Organizations Act (RICO) to Nonviolent Advocacy Groups. Subcommittee on
Crime. July 17, 1998.
* Use of Controlled Substance Used to Commit Date-Rape.
Subcommittee on Crime. July 30, 1998.
* Drug Diversion Investigations by the United States Drug
Enforcement Administration. Subcommittee on Crime. August 6, 1998.
* No Second Chances for Murderers, Rapists, or Child Molesters Act
of 1998. Subcommittee on Crime. September 17, 1998. (H.R. 4258).
* Apalachicola-Chattahoochee-Flint River Basin Compact; Alabama-
Coosa-Tallapoosa River Basin Compact; Chickasaw Trail Economic
Development Compact; and Amendments to the Washington Metropolitan Area
Transit Regulation Compact. Subcommittee on Commercial and
Administrative Law. October 23, 1997. (H.J. Res. 91, H.J. Res. 92, H.J.
Res. 95 and H.J. Res. 96).
* Executive Office for U.S. Attorneys, Environment and Natural
Resources Division, and the Executive Office for U.S. Trustees.
Subcommittee on Commercial and Administrative Law. February 25, 1998.
* Administrative Taxation: the FCC's Universal Service Tax.
Subcommittee on Commercial and Administrative Law. February 26, 1998
* Bankruptcy Reform Act of 1998; Responsible Borrower Protection
Bankruptcy Act; and the Consumer Lenders and Borrowers Bankruptcy
Accountability Act of 1998. Subcommittee on Commercial and
Administrative Law. March 10, 12, 18, 19, 1998. Commercial and
Administrative Law. (H.R. 3150, H.R. 2500 and H.R. 3146).
* Administrative Crimes and Quasi-Crimes. Subcommittee on
Commercial and Administrative Law. Subcommittee on Commercial and
Administrative Law. May 7, 1998.
* Regulatory Fair Warning Act of 1998; and the Taxpayers Defense
Act. Subcommittee on Commercial and Administrative Law. July 23, 1998.
(H.R. 4049 and H.R. 4096).
* Construction Subcontractors Payment Protection Enhancement Act of
1998. Subcommittee on Commercial and Administrative Law of the House
Judiciary Committee jointly with the Subcommittee on Government
Management, Information and Technology of the House Government Reform
Committee. September 11, 1998. (H.R. 3032).
* Potomac Highlands Airport Authority Compact. Subcommittee on
Commercial and Administrative Law. September 25, 1998. (S.J. Res. 51).
* Alternative Dispute Resolution and Settlement Encouragement Act
and the Federal Courts Improvement Act of 1997. Subcommittee on Courts
and Intellectual Property. October 9, 1997. (H.R. 2603 and H.R. 2294).
* The Collections of Information Antipiracy Act; the Vessel Hull
Design Protection Act; and the Trade Dress Protection Act. Subcommittee
on Courts and Intellectual Property. October 23, 1997; February 12,
1998. (H.R. 2652, H.R. 2696, and H.R. 3163).
* Enforcement of Child Custody Orders. Subcommittee on Courts and
Intellectual Property. April 23, 1998. (H.R. 1690).
* Trademark Anticounterfeiting and Dilution of Famous Marks.
Subcommittee on Courts and Intellectual Property. May 21, 1998. (H.R.
3891 and H.R. 3119).
* Protecting American Small Business Trade Act of 1998.
Subcommittee on Courts and Intellectual Property. June 11, 1998. (H.R.
3578).
* Class Action Jurisdiction Act of 1998. June 18, 1998.
Subcommittee on Courts and Intellectual Property. (H.R. 3789).
* Copyright Licensing Regimes Covering Retransmission of
Broadcasting Signals. Subcommittee on Courts and Intellectual Property.
October 30, 1997, February 4, 1998.
* Internet Domain Name Trademark Protection. (Part 2). Subcommittee
on Courts and Intellectual Property. February 12, 1998.
* Attorneys Fees and the Proposed Global Tobacco Settlement.
Subcommittee on Courts and Intellectual Property. December 10, 1997.
* Mass Torts and Class Action Lawsuits. Subcommittee on Courts and
Intellectual Property. March 5, 1998.
* U.S. Patent and Trademark Office (PTO). Subcommittee on Courts
and Intellectual Property. March 19, 1998.
* Privacy in Electronic Communications. Subcommittee on Courts and
Intellectual Property. March 26, 1998.
* Trademark Protection and the Impact of Regulatory Delay on
Patents. Subcommittee on Courts and Intellectual Property. May 21,
1998.
* U.S. Judicial Conference, Administrative Office of the United
States Courts, and the Federal Judicial Center. Subcommittee on Courts
and Intellectual Property. June 11, 1998.
* United States Copyright Office. Subcommittee on Courts and
Intellectual Property. July 23, 1998.
* Institutional Hearing Program. Subcommittee on Immigration and
Claims. July 15, 1997.
* Tucker Act Shuffle Relief Act of 1997. Subcommittee on
Immigration and Claims. September 10, 1997. (HR 992).
* Health Professional Shortage Area Nursing Relief Act of 1997.
Subcommittee on Immigration and Claims. (HR 2759).
* Final Report of the Commission on Immigration Reform.
Subcommittee on Immigration and Claims. November 7, 1997.
* Naturalization Reform Act of 1997. Subcommittee on Immigration
and Claims. March 5, 1998. (H.R. 2837).
* Pending and Anticipated Caseload of Naturalization Applications.
Subcommittee on Immigration and Claims. March 19, 1998.
* Freedom from Religious Persecution Act of 1997. Subcommittee on
Immigration and Claims. (H.R. 2431). March 24, 1998.
* Immigration and America's Workforce for the 21st Century.
Subcommittee on Immigration and Claims. April 21, 1998.
* Health Care Initiatives Pursued Under the False Claims Act That
Impact Hospitals. Subcommittee on Immigration and Claims. April 28,
1998.
* Alternative Proposals to Restructure the INS. Subcommittee on
Immigration and Claims. May 21, 1998.
* 4-Year Nonimmigrant Visitor's Visas. Subcommittee on Immigration
and Claims. June 4, 1998. (H.R. 225).
* Friendly Fire in Iraq; Settlement and payment of claims.
Subcommittee on Immigration and Claims. June 18, 1998. (H.R. 2986, H.R.
3022)
* Radiation Workers Justice Act. Subcommittee on Immigration and
Claims. June 25, 1998. (H.R. 3539).
* Alternative Technologies for Implementation of Section 110 of the
Illegal Immigration Reform and Immigrant Responsibility Act of 1996 at
Land Borders. Subcommittee on Immigration and Claims. July 23, 1998.
* Problems Related to Criminal Aliens in Utah. Subcommittee on
Immigration and Claims. July 27, 1998.
* Tax Limitation Constitutional Amendment. Subcommittee on the
Constitution. March 18, 1997. (H.J. Res. 62).
* Civil Rights Act of 1997. Subcommittee on the Constitution. June
26, 1997. (H.R. 1909).
* United States Commission on Civil Rights. Subcommittee on the
Constitution. July 17, 1997.
* Religious Freedom Restoration Constitutional Amendment.
Subcommittee on the Constitution. July 22, 1997. (H.J. Res. 78).
* Direct Election of the President Constitutional Amendment.
Subcommittee on the Constitution. September 4, 1997. (H.J. Res. 28 and
H.J. Res. 43).
* State Approaches to Protecting Private Property Rights.
Subcommittee on the Constitution. September 23, 1997.
* Congress, the Courts and the Constitution. Subcommittee on the
Constitution. January 29, 1998.
* Civil Rights Division of the U.S. Department of Justice.
Subcommittee on the Constitution. February 25, 1998.
* Citizen Protection Act of 1998. Subcommittee on the Constitution.
March 12, 1998. (H.R. 3168).
* State Proposal of Constitutional Amendments. Subcommittee on the
Constitution. March 25, 1998. (H.J. Res. 84).
* Child Custody Protection Act. Subcommittee on the Constitution.
May 21, 1998. (H.R. 3682).
* Religious Liberty Protection Act of 1998. Subcommittee on the
Constitution. June 16, July 14, 1998. (H.R. 4019).
* Lethal Drug Abuse Prevention Act of 1998. Subcommittee on the
Constitution. July 14, 1998. (H.R. 4006).
* Civil Rights Division of the U.S. Department of Justice.
Subcommittee on the Constitution. July 17, 1998.
Committee Prints
Serial No. and Title
__________
1. Federal Rules of Appellate Procedure. December 1, 1997.
2. Federal Rules of Civil Procedure. December 1, 1997.
3. Federal Rules of Criminal Procedure. December 1, 1997.
4. Federal Rules of Evidence. December 1, 1997.
5. Compilation of Selected Civil Rights Laws (As Amended Through
the 105th Congress, First Session)--Civil Rights Commission Act of
1983, Civil Rights Act of 1957, Civil Rights Act of 1960, Civil Rights
Act of 1964, Title IX of the Education Amendments of 1972, Section 504
of the Rehabilitation Act of 1973, Title III of the Age Discrimination
Act of 1975, Civil Rights Restoration Act of 1987, Civil Rights Act of
1968, Voting Rights Act of 1965, Civil Rights of Institutionalized
Persons Act, Civil Rights Act of 1991, Americans with Disabilities Act
of 1990, Section 722 of the Revised Statutes of the United States.
March 1998.
6. Section-by-Section Analysis of H.R. 2281 as Passed by the United
States House of Representatives on August 4, 1998. Committee on the
Judiciary. September 1998.
7. Votes of the Committee in Executive Session Pursuant to H.Res.
525 September 17, 18, 25, 1998. Committee on the Judiciary. October
1998.
8. Authorization of an Inquiry into Whether Grounds Exist for the
Impeachment of William Jefferson Clinton, President of the United
States. Meeting of the House Committee on the Judiciary held October 5,
1998--Presentation by Inquiry Staff, Consideration of Inquiry
Resolution, Adoption of Inquiry Procedures. Committee on the Judiciary.
December 1998.
9. Constitutional Grounds for Presidential Impeachment: Modern
Precedents. Report by the Staff of the Impeachment Inquiry. Committee
on the Judiciary. November 1998.
10. Impeachment--Selected Materials. Committee on the Judiciary.
November 1998.
11. Oversight Investigation of the Death of Esequiel Hernandez, Jr.
A report of Chairman Lamar Smith of the Subcommittee on Immigration and
Claims. November 1998.
12. Federal Rules of Appellate Procedure. December 1, 1998.
13. Federal Rules of Civil Procedure. December 1, 1998.
14. Federal Rules of Criminal Procedure. December 1, 1998.
15. Federal Rules of Evidence. December 1, 1998.
16. Submission by Counsel for President Clinton to the Committee on
the Judiciary of the United States House of Representatives.
Impeachment Inquiry Pursuant to H.Res. 581. Committee on the Judiciary.
December 1998.
17. Constitutional Grounds for Presidential Impeachment: Modern
Precedents--Minority Views. Report by the Minority Staff of the
Impeachment Inquiry. Committee on the Judiciary. December 1998.
House Documents
H. Doc. No. and Title
__________
105-67. Amendments to the Federal Rules of Civil Procedure.
Communication from the Chief Justice, the Supreme Court of the United
States, transmitting amendments to the Federal Rules of Civil Procedure
that have been adopted by the Court, pursuant to 28 U.S.C. 2074. April
15, 1997. (Executive Communication No. 2795).
105-68. Amendments to the Federal Rules of Criminal Procedure.
Communication from the Chief Justice, the Supreme Court of the United
States, transmitting amendments to the Federal Rules of Criminal
Procedure that have been adopted by the Court, pursuant to 28 U.S.C.
2074. April 15, 1997. (Executive Communication No. 2796).
105-69. Amendments to the Federal Rules of Evidence. Communication
from the Chief Justice, the Supreme Court of the United States,
transmitting amendments to the Federal Rules of Evidence that have been
adopted by the Court, pursuant to 28 U.S.C. 2074. April 15, 1997.
(Executive Communication No. 2798).
105-70. Amendments to the Federal Rules of Bankruptcy Procedure.
Communication from the Chief Justice, the Supreme Court of the United
States, transmitting amendments to the Federal Rules of Bankruptcy
Procedure that have been adopted by the Court, pursuant to 28 U.S.C.
2075. April 15, 1997. (Executive Communication No. 2797).
105-107. Report to the Congress on the Right to Bring an Action
Under Title III of the Cuban Liberty and Democratic Solidarity Act of
1996. Communication from the President of the United States
transmitting a report to Congress that suspension for 6 months beyond
August 1, 1997, of the right to bring an action under title III of the
Cuban Liberty and Democratic Solidarity (LIBERTAD) Act of 1996 is
necessary to the national interests of the United States and will
expedite a transition to democracy in Cuba, pursuant to Public Law 104-
114, section 306(c)(2). July 17, 1997. (Executive Communication No.
4228).
105-111. Legislative Proposal Entitled ``Immigration Reform
Transition Act of 1997''. Message from the President of the United
States transmitting a legislative proposal to provide relief to certain
aliens who would otherwise be subject to removal from the United
States. July 24, 1997. (Presidential Message No. 55).
105-158. Veto of H.R. 1122. Message from the President of the
United States transmitting his veto of H.R. 1122, a bill to amend title
18, United States Code, to ban partial-birth abortions. October 21,
1997.
105-266. Amendments to the Federal Rules of Civil Procedure.
Communication from the Chief Justice, the Supreme Court of the United
States, transmitting amendments to the Federal Rules of Civil Procedure
that have been adopted by the Court, pursuant to 28 U.S.C. 2074. May 5,
1998. (Executive Communication No. 8997).
105-267. Amendments to the Federal Rules of Criminal Procedure.
Communication from the Chief Justice, the Supreme Court of the United
States, transmitting amendments to the Federal Rules of Criminal
Procedure that have been adopted by the Court, pursuant to 28 U.S.C.
2074. May 5, 1998. (Executive Communication No. 8998).
105-268. Amendments to the Federal Rules of Evidence. Communication
from the Chief Justice, the Supreme Court of the United States,
transmitting amendments to the Federal Rules of Evidence that have been
adopted by the Court, pursuant to 28 U.S.C. 2074. May 5, 1998.
(Executive Communication No. 8996).
105-269. Amendments to the Federal Rules of Appellate Procedure.
Communication from the Chief Justice, the Supreme Court of the United
States, transmitting amendments to the Federal Rules of Appellate
Procedure that have been adopted by the Court, pursuant to 28 U.S.C.
2072. May 11, 1998. (Executive Communication No. 9072).
105-272. Proposed Legislation: International Crime Control Act of
1998. Message from the President of the United States transmitting a
draft of proposed legislation to deter and punish international crime,
to protect United States nationals and interests at home and abroad,
and to promote global cooperation against international crime. Referred
jointly to the Committees on the Judiciary, International Relations,
Ways and Means, Commerce, Transportation and Infrastructure, Banking
and Financial Services, and Government Reform and Oversight. June 9,
1998. (Presidential Message No. 135).
105-310. Referral from Independent Counsel Kenneth W. Starr in
Conformity with the Requirements of Title 28, United States Code,
Section 595(c). Communication from Kenneth W. Starr, Independent
Counsel. Referred to the Committee on the Judiciary pursuant to H.Res.
525. September 11, 1998. (Executive Communication No. 10849).
105-311. Appendices to the Referral to the United States House of
Representatives Pursuant to Title 28, United States Code, Section
595(c) submitted by the Office of the Independent Counsel, September 9,
1998. (Parts 1 and 2). Communication from the Office of the Independent
Counsel, Kenneth W. Starr. Referred to the Committee on the Judiciary
pursuant to H.Res. 525. September 18, 1998. (Executive Communication
No. 11083).
105-316. Supplemental Materials to the Referral to the United
States House of Representatives Pursuant to Title 28, United States
Code, Section 595(c) submitted by the Office of the Independent
Counsel, September 9, 1998. (Parts 1, 2, and 3). Communication from the
Office of the Independent Counsel, Kenneth W. Starr. Referred to the
Committee on the Judiciary pursuant to H.Res. 525. September 28, 1998.
(Executive Communication No. 11340).
105-317. Preliminary Memorandum of the President of the United
States Concerning the Referral of the Office of the Independent Counsel
and the Initial Response of the President of the United States to the
Referral of the Office of the Independent Counsel. Communication from
and released by the Committee on the Judiciary. September 28, 1998.
(Executive Communication No. 11337).
Summary of Activities of the Committee on the Judiciary
Legislation Enacted Into Law
----------
A variety of legislation within the Committee's
jurisdiction was enacted into law during the 105th Congress.
The public and private laws are listed below and are more fully
detailed in the subsequent sections of this report recounting
the activities of the Committee and its individual
subcommittees.
public laws
Public Law 105-6.--To amend title 18, United States Code,
to give further assurance to the right of victims of crime to
attend and observe the trials of those accused of the crime.
``Victim Rights Clarification Act of 1997''. (H.R. 924)
(Approved March 19, 1997; effective with respect to cases
pending on the date of enactment).
Public Law 105-11.--To make a technical correction to title
28, United States Code, relating to jurisdiction for lawsuits
against terrorist states. (H.R. 1225) (Approved April 25,
1997).
Public Law 105-12.--To clarify Federal law with respect to
restricting the use of Federal funds in support of assisted
suicide. ``Assisted Suicide Funding Restriction Act of 1997''.
(H.R. 1003) (Approved April 30, 1997).
Public Law 105-19.--To provide certain protections to
volunteers, nonprofit organizations, and governmental entities
in lawsuits based on the activities of volunteers. ``Volunteer
Protection Act of 1997''. (S. 543) (Approved June 18, 1997;
effective date September 16, 1997).
Public Law 105-25.--To amend the President John F. Kennedy
Assassination Records Collection Act of 1992 to extend the
authorization of the Assassination Records Review Board until
September 30, 1998. (H.R. 1553) (Approved July 3, 1997).
Public Law 105-26.--To immunize donations made in the form
of charitable gift annuities and charitable remainder trusts
from the antitrust laws and State laws similar to the antitrust
laws. ``Charitable Donation Antitrust Immunity Act of 1997''.
(H.R. 1902) (Approved July 3, 1997; effective with respect to
all conduct occurring before, on, or after the date of
enactment and applicable in all administrative and judicial
actions pending on or commenced after the date of enactment).
Public Law 105-30.--To clarify that the protections of the
Federal Tort Claims Act apply to the members and personnel of
the National Gambling Impact Study Commission. (H.R. 1901)
(Approved July 25, 1997; effective date August 3, 1996).
Public Law 105-38.--To amend the Immigration and
Nationality Technical Corrections Act of 1994 to eliminate the
special transition rule for issuance of a certificate of
citizenship for certain children born outside the United
States. (S. 670) (Approved August 8, 1997).
Public Law 105-43.--To continue favorable treatment for
need-based educational aid under the antitrust laws. ``Need-
Based Educational Aid Antitrust Protection Act of 1997''. (H.R.
1866) (Approved September 17, 1997; effective immediately
before September 30, 1997).
Public Law 105-53.--To provide for the authorization of
appropriations in each fiscal year for arbitration in United
States district courts, and for other purposes. (S. 996)
(Approved October 6, 1997).
Public Law 105-54.--To amend the Immigration and
Nationality Act to provide permanent authority for entry into
the United States of certain religious workers. (S. 1198)
(Approved October 6, 1997).
Public Law 105-73.--To amend the Immigration and
Nationality Act to exempt internationally adopted children 10
years of age or younger from the immunization requirement in
section 212(a)(1)(A)(ii) of such Act. (H.R. 2464) (Approved
November 12, 1997).
Public Law 105-80.--To make technical amendments to certain
provisions of title 17, United States Code. (H.R. 672)
(Approved November 13, 1997; effective dates vary).
Public Law 105-85.--To authorize appropriations for fiscal
year 1998 for military activities of the Department of Defense,
for military construction, and for defense activities of the
Department of Energy, to prescribe personnel strengths for such
fiscal year for the Armed Forces, and for other purposes.
``National Defense Authorization Act for Fiscal Year 1998''.
``Military Construction Authorization Act for Fiscal year
1998''. ``Sikes Act Improvement Act of 1997''. ``Panama Canal
Commission Authorization Act for Fiscal Year 1998''. ``Panama
Canal Transition Facilitation Act of 1997''. (H.R. 1119)
(Approved November 18, 1997; effective dates vary).
Public Law 105-101.--To amend chapter 91 of title 18,
United States Code, to provide criminal penalties for theft and
willful vandalism at national cemeteries. ``Veterans' Cemetery
Protection Act of 1997''. (S. 813) (Approved November 19,
1997).
Public Law 105-102.--To codify without substantive change
laws related to transportation and to improve the United States
Code. (H.R. 1086) (Approved November 20, 1997).
Public Law 105-104.--Granting the consent of Congress to
the Apalachicola-Chattahoochee-Flint River Basin Compact. (H.J.
Res. 91) (Approved November 20, 1997).
Public Law 105-105.--Granting the consent of Congress to
the Alabama-Coosa-Tallapoosa River Basin Compact. (H.J. Res.
92) (Approved November 20, 1997).
Public Law 105-110.--To amend the Act incorporating the
American Legion to make a technical correction. (S. 1377)
(Approved November 20, 1997).
Public Law 105-112.--To provide a law enforcement exception
to the prohibition on the advertising of certain electronic
devices. (H.R. 1840) (Approved November 21, 1997).
Public Law 105-133.--To provide for the establishment of
not less than 2,500 Boys and Girls Clubs of America facilities
by the year 2000. (S. 476) (Approved December 2, 1997).
Public Law 105-136.--To amend the Immigration and
Nationality Act to authorize appropriations for refugee and
entrant assistance for fiscal years 1998 and 1999. (S. 1161)
(Approved December 2, 1997; effective date October 1, 1997).
Public Law 105-141.--To require the Attorney General to
establish a program in local prisons to identify, prior to
arraignment, criminal aliens and aliens who are unlawfully
present in the United States, and for other purposes. (H.R.
1493) (Approved December 5, 1997).
Public Law 105-145.--Granting the consent of Congress to
the Chickasaw Trail Economic Development Compact. (H.J. Res.
95) (Approved December 15, 1997).
Public Law 105-147.--To amend the provisions of titles 17
and 18, United States Code, to provide greater copyright
protection by amending criminal copyright infringement
provisions, and for other purposes. ``No Electronic Theft (NET)
Act''. (H.R. 2265) (Approved December 16, 1997).
Public Law 105-151.--Granting the consent and approval of
Congress for the State of Maryland, the Commonwealth of
Virginia, and the District of Columbia to amend the Washington
Metropolitan Area Transit Regulation Compact. (H.J. Res. 96)
(Approved December 16, 1997).
Public Law 105-166.--To make certain technical corrections
to the Lobbying Disclosure Act of 1995. ``Lobbying Disclosure
Technical Amendments Act of 1998''. (S. 758) (Approved April 6,
1998).
Public Law 105-172.--To amend title 18, United States Code,
with respect to scanning receivers and similar devices.
``Wireless Telephone Protection Act''. (S. 493) (Approved April
24, 1998).
Public Law 105-173.--To amend the Immigration and
Nationality Act to modify and extend the visa waiver pilot
program, and to provide for the collection of data with respect
to the number of nonimmigrants who remain in the United States
after the expiration of the period of stay authorized by the
Attorney General. (S. 1178) (Approved April 27, 1998).
Public Law 105-180.--To amend Part L of the Omnibus Crime
Control and Safe Streets Act of 1968. ``Care for Police
Survivors Act of 1998''. (H.R. 3565) (Approved June 16, 1998).
Public Law 105-181.--To establish a matching grant program
to help State and local jurisdictions purchase armor vests for
use by law enforcement departments. ``Bulletproof Vest
Partnership Grant Act of 1998''. (S. 1605) (Approved June 16,
1998).
Public Law 105-183.--To amend title 11, United States Code,
to protect certain charitable contributions, and for other
purposes. (S. 1244) (Approved June 19, 1998).
Public Law 105-184.--To improve the criminal law relating
to fraud against consumers. (H.R. 1847) (Approved June 23,
1998).
Public Law 105-187.--To establish felony violations for the
failure to pay legal child support obligations, and for other
purposes. ``Deadbeat Parents Punishment Act of 1998''. (H.R.
3811) (Approved June 24, 1998).
Public Law 105-225.--To revise, codify, and enact without
substantive change certain general and permanent laws, related
to patriotic and national observances, ceremonies, and
organizations, as title 36, United States Code, ``Patriotic and
National Observances, Ceremonies, and Organizations''. (H.R.
1085) (Approved August 12, 1998).
Public Law 105-230.--To establish rules governing product
liability actions against raw materials and bulk component
suppliers to medical device manufacturers, and for other
purposes. ``Biomaterials Access Assurance Act of 1998''. (H.R.
872) (Approved August 13, 1998; effective with respect to civil
actions commenced on or after August 13, 1998, including any
such action with respect to which the harm asserted in the
action or the conduct that caused the harm occurred before such
date).
Public Law 105-231.--To grant a Federal charter to the
American GI Forum of the United States. (S. 1759) (Approved
August 13, 1998).
Public Law 105-233.--To amend chapter 45 of title 28,
United States Code, to authorize the Administrative Assistant
to the Chief Justice to accept voluntary services, and for
other purposes. (S. 2143) (Approved August 13, 1998).
Public Law 105-246.--To amend section 552 of title 5,
United States Code, and the National Security Act of 1947 to
require disclosure under the Freedom of Information Act
regarding certain persons, disclose Nazi war criminal records
without impairing any investigation or prosecution conducted by
the Department of Justice or certain intelligence matters, and
for other purposes. ``Nazi War Crimes Disclosure Act''. (S.
1379) (Approved October 8, 1998; effective date January 6,
1999).
Public Law 105-251.--To provide for the improvement of
interstate criminal justice identification, information,
communications, and forensics. ``Crime Identification
Technology Act of 1998''. ``National Criminal History Access
and Child Protection Act''. ``National Crime Prevention and
Privacy Compact Act of 1998''. ``Volunteers for Children Act''.
(S. 2022) (Approved October 9, 1998).
Public Law 105-259.--To extend the date by which an
automated entry-exit control system must be developed. (H.R.
4658) (Approved October 15, 1998).
Public Law 105-261.--To authorize appropriations for fiscal
year 1999 for military activities of the Department of Defense,
for military construction, and for defense activities of the
Department of Energy, to prescribe personnel strengths for such
fiscal year for the Armed Forces, and for other purposes.
``Strom Thurmond National Defense Authorization Act for Fiscal
Year 1999''. (H.R. 3616) (Approved October 17, 1998; effective
dates vary).
Public Law 105-271.--To encourage the disclosure and
exchange of information about computer processing problems,
solutions, test practices and test results, and related matters
in connection with the transition to the year 2000. ``Year 2000
Information and Readiness Disclosure Act''. (S. 2392) (Approved
October 19, 1998).
Public Law 105-289.--To amend title 35, United States Code,
to protect patent owners against the unauthorized sale of plant
parts taken from plants illegally reproduced, and for other
purposes. ``Plant Patent Amendments Act of 1998''. (H.R. 1197)
(Approved October 27, 1998).
Public Law 105-292.--To express United States foreign
policy with respect to, and to strengthen United States
advocacy on behalf of, individuals persecuted in foreign
countries on account of religion; to authorize United States
actions in response to violations of religious freedom in
foreign countries; to establish an Ambassador at Large for
International Religious Freedom within the Department of State,
a Commission on International Religious Freedom, and a Special
Adviser on International Religious Freedom within the National
Security Council; and for other purposes. ``International
Religious Freedom Act of 1998''. (H.R. 2431) (Approved October
27, 1998).
Public Law 105-297.--To require the general application of
the antitrust laws to major league baseball, and for other
purposes. ``Curt Flood Act of 1998''. (S. 53) (Approved October
27, 1998).
Public Law 105-298.--To amend the provisions of title 17,
United States Code, with respect to the duration of copyright,
and for other purposes. ``Sonny Bono Copyright Term Extension
Act''. ``Fairness in Music Licensing Act of 1998''. (S. 505)
(Approved October 27, 1998; effective dates vary).
Public Law 105-300.--To provide that a person closely
related to a judge of a court exercising judicial power under
article III of the United States Constitution (other than the
Supreme Court) may not be appointed as a judge of the same
court, and for other purposes. (S. 1892) (Approved October 27,
1998; applicable with respect to any individual whose
nomination is submitted to the Senate on or after the date of
enactment).
Public Law 105-301.--To increase public awareness of the
plight of victims of crime with developmental disabilities, to
collect data to measure the magnitude of the problem, and to
develop strategies to address the safety and justice needs of
victims of crime with developmental disabilities. ``Crime
Victims With Disabilities Awareness Act''. (S. 1976) (Approved
October 27, 1998).
Public Law 105-302.--To amend part Q of the Omnibus Crime
Control and Safe Streets Act of 1968 to encourage the use of
school resource officers. (S. 2235) (Approved October 27,
1998).
Public Law 105-304.--To amend title 17, United States Code,
to implement the World Intellectual Property Organization
Copyright Treaty and Performances and Phonograms Treaty. (H.R.
2281) (Approved October 28, 1998).
Public Law 105-310.--To amend chapter 53 of title 31,
United States Code, to require the development and
implementation by the Secretary of the Treasury of a national
money laundering and related financial crimes strategy to
combat money laundering and related financial crimes, and for
other purposes. (H.R. 1756) (Approved October 30, 1998).
Public Law 105-314.--To amend title 18, United States Code,
with respect to violent sex crimes against children, and for
other purposes. (H.R. 3494) (Approved October 30, 1998).
Public Law 105-315.--To amend title 28, United States Code,
with respect to the use of alternative dispute resolution
processes in United States district courts, and for other
purposes. (H.R. 3528) (Approved October 30, 1998).
Public Law 105-318.--To amend chapter 47 of title 18,
United States Code, relating to identity fraud, and for other
purposes. (H.R. 4151) (Approved October 30, 1998).
Public Law 105-319.--To establish a cultural training
program for disadvantaged individuals to assist the Irish peace
process. (H.R. 4293) (Approved October 30, 1998).
Public Law 105-330.--To implement the provision of the
Trademark Law Treaty. (S. 2193) (Approved October 30, 1998).
Public Law 105-339.--To amend title 5, United States Code,
to provide that consideration may not be denied to preference
eligibles applying for certain positions in the competitive
service, and for other purposes. (S. 1021) (Approved October
31, 1998).
Public Law 105-348. Granting the consent of Congress to the
Potomac Highlands Airport Authority Compact entered into
between the States of Maryland and West Virginia. (S.J. Res.
51) (Approved November 2, 1998).
Public Law 105-354.--To codify without substantive change
laws related to Patriotic and National Observances, Ceremonies,
and Organizations and to improve the United States Code. (S.
2524) (Approved November 3, 1998).
Public Law 105-357.--To amend the Controlled Substances
Import and Export Act to place limitations on controlled
substances brought into the United States from Mexico. (H.R.
3633) (Approved November 10, 1998).
Public Law 105-358.--To authorize funds for the payment of
salaries and expenses of the Patent and Trademark Office, and
for other purposes. (H.R. 3723) (Approved November 10, 1998).
Public Law 105-360.--To extend into fiscal year 1999 the
visa processing period for diversity applicants whose visa
processing was suspended during fiscal year 1998 due to embassy
bombings. (H.R. 4821) (Approved November 10, 1998).
Public Law 105-369.--To provide for compassionate payments
with regard to individuals with blood-clotting disorders, such
as hemophilia, who contracted human immunodeficiency virus due
to contaminated blood products, and for other purposes. (H.R.
1023) (Approved November 12, 1998).
Public Law 105-370.--To amend title 18, United States Code,
to provide for the mandatory testing for serious transmissible
diseases of incarcerated persons whose bodily fluids come in
contact with corrections personnel and notice to those
personnel of the results of the tests. (H.R. 2070) (Approved
November 12, 1998).
Public Law 105-374.--To amend title 28, United States Code,
with respect to the enforcement of child custody and visitation
orders. (H.R. 4164) (Approved November 12, 1998).
Public Law 105-377.--Granting the consent and approval of
Congress to an interstate forest fire protection compact. (S.
1134) (Approved November 12, 1998).
Public Law 105-381.--Granting the consent of Congress to
the Pacific Northwest Emergency Management Arrangement. (S.J.
Res. 35) (Approved November 12, 1998).
Public Law 105-386.--To throttle criminal use of guns. (S.
191) (Approved November 13, 1998).
Public Law 105-390.--To provide for financial assistance
for higher education to the dependents of Federal, State, and
local public safety officers who are killed or permanently and
totally disabled as the result of a traumatic injury sustained
in the line of duty. (S. 1525) (Approved November 13, 1998).
private laws
Private Law 105-1.--For the relief of Michael Christopher
Meili, Giuseppina Meili, Mirjam Naomi Meili, and Davide Meili.
(S. 768) (Approved July 29, 1997).
Private Law 105-2.--For the relief of John Wesley Davis.
(H.R. 584) (Approved August 11, 1997).
Private Law 105-3.--For the relief of Roy Desmond Moser.
(H.R. 2731) (Approved November 21, 1997).
Private Law 105-4.--For the relief of John Andre Chalot.
(H.R. 2732) (Approved November 21, 1997).
Private Law 105-5.--For the relief of Heraclio Tolley.
(H.R. 378) (Approved November 2, 1998).
Private Law 105-6.--For the relief of Larry Errol Pieterse.
(H.R. 379) (Approved November 10, 1998).
Private Law 105-7.--For the relief of Mai Hoa ``Jasmine''
Salehi. (H.R. 1794) (Approved November 10, 1998).
Private Law 105-8.--For the relief of Mercedes Del Carmen
Quiroz Martinez Cruz. (H.R. 1834) (Approved November 10, 1998).
Private Law 105-9.--For the relief of Nuratu Olarewaju
Abeke Kadiri. (H.R. 1949) (Approved November 10, 1998).
Private Law 105-10.--For the relief of Chong Ho Kwak. (H.R.
2744) (Approved November 10, 1998).
Conference Appointments
Members of the Committee were named by the Speaker as
conferees on the following bills which contained legislative
language within the Committee's Rule X jurisdiction:
H.R. 1119
Members of the Committee served as conferees on H.R. 1119,
the ``National Defense Authorization Act for Fiscal Year
1998.'' H.R. 1119 became law on November 18, 1997, as Public
Law 105-85.
H.R. 3616
Members of the Committee served as conferees on H.R. 3616,
the ``National Defense Authorization Act for Fiscal Year
1999.'' H.R. 3616 became law on October 17, 1998, as Public Law
105-261.
COMMITTEE ON THE JUDICIARY
HENRY J. HYDE, Illinois, Chairman
JOHN CONYERS, Jr., Michigan F. JAMES SENSENBRENNER, Jr.,
BARNEY FRANK, Massachusetts Wisconsin
CHARLES E. SCHUMER, New York BILL McCOLLUM, Florida
HOWARD L. BERMAN, California GEORGE W. GEKAS, Pennsylvania
RICK BOUCHER, Virginia HOWARD COBLE, North Carolina
JERROLD NADLER, New York LAMAR S. SMITH, Texas
ROBERT C. SCOTT, Virginia STEVEN SCHIFF, New Mexico \4\
MELVIN L. WATT, North Carolina ELTON GALLEGLY, California
ZOE LOFGREN, California CHARLES T. CANADY, Florida
SHEILA JACKSON LEE, Texas BOB INGLIS, South Carolina
MAXINE WATERS, California BOB GOODLATTE, Virginia
MARTIN T. MEEHAN, Massachusetts STEPHEN E. BUYER, Indiana
WILLIAM D. DELAHUNT, Massachusetts SONNY BONO, California \1\
ROBERT WEXLER, Florida ED BRYANT, Tennessee
STEVEN R. ROTHMAN, New Jersey STEVE CHABOT, Ohio
THOMAS M. BARRETT, Wisconsin \6\ BOB BARR, Georgia
WILLIAM L. JENKINS, Tennessee
ASA HUTCHINSON, Arkansas
EDWARD A. PEASE, Indiana
CHRISTOPHER B. CANNON, Utah
JAMES E. ROGAN, California \2\
LINDSEY O. GRAHAM, South Carolina
\3\
MARY BONO, California \5\
----------
\1\ Sonny Bono, California, deceased January 5, 1998.
\2\ James E. Rogan, California, elected to the Committee pursuant
to House Resolution 354, approved by the House February 11, 1998.
\3\ Lindsey O. Graham, South Carolina, elected to the Committee
pursuant to House Resolution 371, approved by the House February 26,
1998.
\4\ Steven Schiff, New Mexico, deceased March 25, 1998.
\5\ Mary Bono, California, elected to the Committee pursuant to
House Resolution 429, approved by the House May 13, 1998.
\6\ Thomas M. Barrett, Wisconsin, elected to the Committee pursuant
to House Resolution 530, approved by the House September 11, 1998.
Tabulation of activity on legislation held at the full Committee
Legislation held at the full Committee............................ 115
Legislation reported to the House................................. 13
Legislation discharged from the Committee......................... 16
Legislation pending in the House.................................. 2
Legislation failed passage by the House........................... 1
Legislation passed by the House................................... 27
Legislation pending in the Senate................................. 5
Legislation vetoed by the President (not overridden).............. 1
Legislation enacted into public law............................... 13
House resolutions approved........................................ 7
Legislation on which hearings were held........................... 11
Days of hearings (legislative and oversight)...................... 25
Full Committee Activities
During the 105th Congress, the full Judiciary Committee
retained original jurisdiction with respect to a number of
legislative and oversight matters. This included exclusive
jurisdiction over the impeachment inquiry of President William
Jefferson Clinton, and antitrust and liability issues. In
addition, a number of specific legislative issues were handled
exclusively by the full Committee, including the Balanced
Budget Constitutional Amendment, the Victims Rights
Constitutional Amendment, civil asset forfeiture, the
Department of Justice authorization bill, and the Protection
from Personal Intrusion Act.
Impeachment
Impeachment of William Jefferson Clinton, President of the United
States
Background
On September 9, 1998, Independent Counsel Starr notified
Speaker Gingrich and Minority Leader Gephardt that his office
``delivered to the Sergeant at Arms, the Honorable Wilson
Livingood, 36 sealed boxes containing two complete copies of a
Referral to the House of Representatives.'' \1\ The Referral
included a narrative, appendices, and supporting documents and
evidence which supported the Office of Independent Counsel's
findings regarding the Lewinsky matter.\2\ Independent Counsel
Starr forwarded this information pursuant to the Independent
Counsel Reauthorization Act, 28 U.S.C. Sec. 591 et. seq., which
provides:
---------------------------------------------------------------------------
\1\ Letter from Independent Counsel Kenneth W. Starr to The
Honorable Newt Gingrich and the Honorable Richard A. Gephardt,
September 9, 1998.
\2\ On January 16, 1998, in response to Attorney General Janet
Reno's request, the Special Division of the United States Court of
Appeals for the District of Columbia Circuit, expanded the jurisdiction
of Independent Counsel Kenneth W. Starr. The Special Division's order
provides in pertinent part:
The Independent Counsel shall have jurisdiction and
authority to investigate to the maximum extent authorized
by the Independent Counsel Reauthorization Act of 1994
whether Monica Lewinsky or others suborned perjury,
obstructed justice, intimidated witnesses, or otherwise
violated federal law other than a Class B or C misdemeanor
or infraction in dealing with witnesses, potential
witnesses, attorneys, or others concerning the civil case
---------------------------------------------------------------------------
Jones v. Clinton.
In re: Madison Guaranty Savings and Loan Association, Order of the
United States Court of Appeals for the District of Columbia Circuit,
Division for the Purpose of Appointing Independent Counsels, January
16, 1998 (reprinted in H.R. Doc. 105-311, Part I, at 6-7).
Information relating to impeachment.--An independent
counsel shall advise the House of Representatives of
any substantial and credible information which such
independent counsel receives, in carrying out the
independent counsel's responsibilities under this
chapter, that may constitute grounds for an
impeachment. Nothing in this chapter or section 49 of
this title [concerning the assignment of judges to the
Special Division that appoints an independent counsel]
shall prevent the Congress or either House thereof from
obtaining information in the course of an impeachment
proceeding.\3\
---------------------------------------------------------------------------
\3\ 28 U.S.C. Sec. 595(c) (1994).
H. Res. 525
On September 10, 1998, the Committee on Rules received
testimony regarding the handling of the Referral. Chairman
Hyde, Ranking Member Conyers, Representative Lofgren,
Representative Jackson Lee, and Representative Waters, all
Members of the Committee, testified before the Committee on
Rules.\4\ After the hearing, the Committee considered an
original resolution, which provided for a deliberative review
by the Committee on the Judiciary of a communication from an
independent counsel, and for the release thereof.\5\ On
September 10, 1998, the Committee on Rules reported H. Res. 525
to the House as an original resolution (H. Rept. 105-703). The
full House of Representatives approved H. Res. 525 on September
11, 1998, by a vote of 363-63.\6\ As a result of the passage of
H. Res. 525, the narrative was ordered printed as a House
document.\7\
---------------------------------------------------------------------------
\4\ Hearing before the Comm. on Rules on H. Res. 525, 105th Cong.,
2nd Sess. (September 10, 1998).
\5\ Id.
\6\ 144 Cong. Rec. H7587-H7608 (daily ed. September 11, 1998).
\7\ Referral from Independent Counsel Kenneth W. Starr in
Conformity with the Requirements of Title 28, United States Code,
Section 595(c), H.R. Doc. 105-310, 2nd Sess, 105th Cong., 129-130
(1998).
---------------------------------------------------------------------------
Procedures Applicable to the Review of the Communication from the
Independent Counsel
After the passage of H. Res. 525, Chairman Hyde issued
``Procedures Applicable to the Review of the Communication from
the Independent Counsel.'' These procedures, reprinted herein,
were promulgated to, inter alia, address security issues
relating to the material. The Committee is particularly pleased
that there were few, if any, leaks of executive session
material. The procedures implemented by the Chairman are as
follows:
Procedures Applicable to the Review of the Communication from the
Independent Counsel
1. Pursuant to H. Res. 525, the Committee will review the
subject matter of any communication and related matters from
the Independent Counsel to determine whether sufficient grounds
exist to recommend to the House that an impeachment inquiry be
commenced.
2. Unless otherwise authorized by the Chairman, the
designated staff of the initial inquiry shall not disclose to
anyone other than designated staff and Members of the Committee
either the substance of their work or that of the Committee
conducted in executive session. Testimony taken or documents,
records, and materials received by the Committee in executive
session shall not be disclosed or made public by Members or
staff unless authorized by a majority vote of the Committee.
3. Offices containing executive session information
regarding the initial inquiry (hereinafter the ``secure area'')
shall operate under strict security precautions. At least one
guard shall be on duty at all times to ensure the documents,
records, and materials are secure and the guard shall control
ingress to, and egress from, the designated secure areas. All
persons entering the secure area shall identify themselves and
a list shall be kept of all persons who enter and exit the
secure areas. Unless otherwise authorized by the Chairman in
writing, no person may enter or exit the secure area with a
cellular phone or any device, electronic or otherwise, which
may be used to transcribe or keep a record of materials in the
secure area. No person may enter or exit the secure area with
briefcases, containers, or any other device that may be used to
transport an item.
4. All records received in executive session shall be
segregated in a secure storage area. Executive session
transcripts, documents, records, and materials shall be
available solely to Members of the Committee and designated
Committee staff in the secure area. They may be examined only
at supervised reading facilities within the secure area. Unless
otherwise authorized by the Chairman in writing, no person may
exit the secure area with documents, records, or materials or
notes, recordings, or copies thereof.
5. Access to classified information supplied to the
Committee shall be limited by the Chairman, after consultation
with the ranking minority member, to those staff Members with
the appropriate security clearances and a need to know.
6. One official set of documents, records, or other
materials received by the Committee regarding the initial
inquiry shall be kept in the secure area and maintained by the
Chairman. Two duplicate sets of documents, records, and other
materials shall be kept in the secure area. One duplicate set
shall be available to the majority and one duplicate set shall
be available to the minority for review in the secure area.
Additional copies may be made for the purpose of conducting the
initial review. No copies made pursuant to these rules shall be
removed from the secure area except for the purpose of
conducting any committee hearing, meeting, or proceeding
relating to the initial inquiry. Such removal is subject to
Rule 4 requiring written authorization by the Chairman.
7. Each Member of the committee will be given access and
the opportunity to examine all documents, records, and material
that have been obtained by the Committee in executive session.
Members and designated staff shall schedule a time to review
documents, records, and other materials with the Chief
Investigative Counsel. Hours for such examination shall be as
follows:
Monday through Friday--8 a.m. until midnight
Saturday--8 a.m. until 10 p.m.
Sunday--10 a.m. until 10 p.m.
8. Except for the approximately 445 pages comprising an
introduction, a narrative, and a statement of grounds, all
documents, records, and materials referred to the Committee
under H. Res. 525 have been received in executive session.
Pursuant to clause 2(k)(7) of House Rule XI, no Member or staff
may discuss, characterize, refer to, or otherwise reveal the
contents of executive session materials or proceedings related
thereto. Any violation of the executive session rules of the
House may be subject to such disciplinary action as the House
may adjudge.
9. Once materials that have been received in executive
session are made available to the public by order of the
Committee, they may be removed from the secure storage area. If
any redactions have been made to the materials prior to public
release, only the redacted versions may be removed. Also, any
work product created inside the secure storage area which does
not contain, discuss, characterize, refer to or otherwise
reveal the contents of executive session materials or
proceedings related thereto which have not been made available
to the public by order of the Committee may be removed from the
secure storage area. Whether material is eligible for removal
from the secure storage area pursuant to this paragraph shall
be determined jointly by Tom Mooney and Julian Epstein, or
their designees, after a review of the materials to be removed.
The determination by Mr. Mooney and Mr. Epstein, or their
designees, that materials may be removed from the secure
storage area pursuant to this paragraph shall be communicated
by them to the guard who is assigned to monitor the security of
the secure storage area.
Proceedings Pursuant to H. Res. 525
In addition to ordering the public release of the
narrative, section two of H. Res. 525 directed that the
``balance of [the] material . . . shall be released from
[executive session status] on September 28, 1998, except as
otherwise determined by the committee. Material so released
shall immediately be submitted for printing as a document of
the House.'' Pursuant to this directive, the Committee staff
reviewed over 60,000 documents in less than 3 weeks. The task
was daunting and required a great deal of staff resources to
complete the job within the allotted time frame. After the
staff and Members reviewed the material, the Committee met in
executive session on September 17, 18, and 25 to consider the
staff's recommendations regarding the release of materials and
proposed redactions to those materials which were made to
protect privacy, remove vulgarities, and protect sensitive law
enforcement information, such as the names of FBI agents.\8\ On
September 18 and pursuant to H. Res. 525, redacted appendices
to the Referral were ordered printed as a House document \9\
and redacted supplemental materials to the referral were
released on September 28.\10\ Also, on September 28, the
President's responses to the Referral, which were received by
the Committee in executive session, were ordered printed as a
House document.\11\
---------------------------------------------------------------------------
\8\ See Votes of the Comm. in Executive Session Pursuant to H. Res.
525, Comm. on the Judiciary, House of Representatives, Comm. Print,
Ser. No. 7, 105th Cong., 2nd Sess. (1998).
\9\ Appendices to the Referral to the United States House of
Representatives Pursuant to Title 28, United States Code, Section
595(c) Submitted by the Office of the Independent Counsel, September 9,
1998, H.R. Doc. 105-311, 105th Cong., 2nd Sess. (September 18, 1998).
\10\ Supplemental Materials to the Referral to the United States
House of Representatives Pursuant to Title 28, United States Code,
Section 595(c) Submitted by the Office of the Independent Counsel,
September 9, 1998, H.R. Doc. 105-316, 105th Cong., 2nd Sess. (September
28, 1998).
\11\ Preliminary Memorandum of the President of the United States
Concerning Referral of the Office of the Independent Counsel and
Initial Response of the President of the United States to Referral of
the Office of the Independent Counsel, H.R. Doc. 105-317, 105th Cong.,
2nd Sess. (September 28, 1998).
---------------------------------------------------------------------------
Pursuant to H. Res. 525, the Committee was also obligated
to ``determine whether sufficient grounds exist to recommend to
the House that an impeachment inquiry be commenced.'' In order
to fulfill that important obligation, the Chairman and Ranking
Minority Member directed the majority and minority chief
investigative counsels to advise the Committee regarding the
information referred by the Independent Counsel. The Committee
received their orally delivered reports on October 5, 1998. The
Committee's Chief Investigative Counsel advised that there was
enough information to warrant a full inquiry, while the
minority's chief investigative counsel advised against
conducting a full inquiry.
Consideration and Passage of H. Res. 581
Following those presentations, the Committee approved an
original resolution which recommended that the full House of
Representatives authorize the Committee to conduct an
impeachment inquiry. The Committee approved that resolution,
which eventually became H. Res. 581, by a vote of 21 to 16.
Also, on that day the Committee considered and approved by
voice vote impeachment inquiry procedures which were modeled
after the procedures used in 1974.\12\ The procedures adopted
are as follows:
---------------------------------------------------------------------------
\12\ Authorization of an Inquiry Into Whether Grounds Exist for the
Impeachment of William Jefferson Clinton, President of the United
States; Meeting of the House Comm. on the Judiciary Held October 5,
1998; Presentation by Inquiry Staff/Consideration of Inquiry
Resolution/Adoption of Inquiry Procedures, Committee Print, Ser. No. 8,
105th Cong., 2nd Sess. (December 1998).
House Committee on the Judiciary
Impeachment Inquiry Procedures
The Committee on the Judiciary states the following
procedures applicable to the presentation of evidence in the
impeachment inquiry pursuant to H. Res. 581, subject to
modification by the Committee as it deems proper as the inquiry
proceeds.
A. The Committee shall conduct an investigation
pursuant to H. Res. 581.
1. Any Committee Member may bring additional
evidence to the Committee's attention.
2. The President's counsel shall be invited
to respond to evidence received and testimony
adduced by the Committee, orally or in writing
as shall be determined by the Committee.
3. Should the President's counsel wish the
Committee to receive additional testimony or
other evidence, he shall be invited to submit
written requests and precise summaries of what
he would propose to show, and in the case of a
witness, precisely and in detail what it is
expected the testimony of the witness would be,
if called. On the basis of such requests and
summaries and of the record then before it, the
Committee shall determine whether the suggested
evidence is necessary or desirable to a full
and fair record in the inquiry, and, if so,
whether the summaries shall be accepted as part
of the record or additional testimony or
evidence in some other form shall be received.
B. If and when witnesses are to be called, the
following additional procedures shall be applicable to
hearings held for that purpose:
1. The President and his counsel shall be
invited to attend all hearings, including any
held in executive session.
2. Objections relating to the examination of
witnesses, or to the admissibility of testimony
and evidence may be raised only by a witness or
his counsel, a Member of the Committee,
Committee counsel or the President's counsel
and shall be ruled upon by the Chairman or
presiding Member. Such rulings shall be final,
unless overruled by a vote of a majority of the
Members present.
3. Committee counsel shall commence the
questioning of each witness and may also be
permitted by the Chairman or presiding Member
to question a witness at any point during the
appearance of the witness.
4. The President's counsel may question any
witness called before the Committee, subject to
instructions from the Chairman or presiding
Member respecting the time, scope and duration
of the examination.
C. The Committee shall determine, pursuant to the
Rules of the House, whether and to what extent the
evidence to be presented shall be received in executive
session.
D. The Chairman is authorized to promulgate
additional procedures as he deems necessary for the
fair and efficient conduct of Committee hearings held
pursuant to H. Res. 581, provided that the additional
procedures are not inconsistent with these Procedures,
the Rules of the Committee, and the Rules of the House.
Such procedures shall govern the conduct of the
hearings, unless overruled by a vote of a majority of
the Members present.
E. For purposes of hearings held pursuant to these
rules, a quorum shall consist of 10 Members of the
Committee.
F. Information obtained by the Committee pursuant to
letter request, subpoena, deposition, or interrogatory
shall be considered as taken in executive session
unless it is received in an open session of the
Committee. The Chairman is authorized to determine
whether other materials received by the Committee shall
be deemed executive session material.
On October 7, the Committee reported H. Res. 581 to the
House as an original resolution (H. Rept. 105-795).\13\ On
October 8, by a vote of 258 to 176, the House passed H. Res.
581, which ``authorized and directed [the Committee on the
Judiciary] to investigate fully and completely whether
sufficient grounds exist for the House of Representatives to
exercise its constitutional power to impeach William Jefferson
Clinton, President of the United States of America.'' 144 Cong.
Rec. H10119 (daily ed. October 8, 1998).
---------------------------------------------------------------------------
\13\ Investigatory Powers of the Comm. on the Judiciary with
Respect to its Impeachment Inquiry, H. Rept. 105-795, 105th Cong., 2nd
Sess. (October 7, 1998).
---------------------------------------------------------------------------
Proceedings Pursuant to H. Res. 581
After the passage of H. Res. 581, Committee staff was
directed to investigate fully the allegations and evidence
relating to the Referral. Furthermore, the staff met with
representatives of the White House to discuss ways in which the
inquiry could proceed expeditiously. At an October 21, 1998,
meeting, Charles F.C. Ruff, counsel to the President, and his
colleagues were asked to provide exculpatory information to the
Committee. They did not supply any information. Also, the White
House was provided copies of the Committee's procedures which,
inter alia, allowed the President's counsel to call witnesses.
They did not exercise this right until the Committee was
preparing to vote on articles of impeachment.
In order to move the process forward, the Committee sent
the President 81 requests for admission which were to be
answered in writing under oath.\14\ Notwithstanding repeated
requests, the White House did not submit its answers until
after 3 weeks passed.\15\ Many on the Committee felt that the
President's answers were evasive, misleading, and perjurious.
His answers became the basis for the fourth article of
impeachment.
---------------------------------------------------------------------------
\14\ Letter from The Honorable Henry J. Hyde to The Honorable
William Jefferson Clinton, November 5, 1998.
\15\ Letter from Mr. David Kendall, Esq. to The Honorable Henry J.
Hyde, November 27, 1998.
---------------------------------------------------------------------------
On November 9, 1998, the Subcommittee on the Constitution
held a hearing at which 19 legal and constitutional experts
testified on the background and history of impeachment.\16\ The
purpose of the hearing was to hear from a diverse group of
scholars regarding the constitutional standard of impeachment--
``high Crimes and Misdemeanors.'' The Committee also published
three lengthy documents to assist Members with their research
into impeachment.\17\
---------------------------------------------------------------------------
\16\ The Background and History of Impeachment: Hearing before the
Subcomm. On the Constitution, Comm. on the Judiciary, 105th Cong., 2nd
Sess. (November 9, 1998).
\17\ See Constitutional Grounds for Presidential Impeachment:
Modern Precedents, House Comm. on the Judiciary, Comm. Print, Ser. No.
9, 105th Cong., 2nd Sess. (November 1998); Impeachment: Selected
Materials, House Comm. on the Judiciary, Comm. Print, Ser. No. 10,
105th Cong., 2nd Sess. (November 1998); Constitutional Grounds for
Presidential Impeachment: Modern Precedents, Minority Views, House
Comm. on the Judiciary, Comm. Print, Ser. No. 17, 105th Cong., 2nd
Sess. (December 1998).
---------------------------------------------------------------------------
On November 19, 1998, the Committee heard testimony from
Independent Counsel Starr.\18\ Judge Starr was invited after
many Democrats requested that he be called before the
Committee. David Kendall, the President's private attorney,
questioned Judge Starr for an hour. In all of his questioning,
Mr. Kendall never once asked any questions relating to the
evidence collected during the grand jury's investigation.
---------------------------------------------------------------------------
\18\ Hearings on Impeachment Inquiry Pursuant to H. Res. 581:
Hearing before the Comm. On the Judiciary, 105th Cong., 2nd Sess.
(November 19, 1998).
---------------------------------------------------------------------------
On December 1, the Committee adduced testimony from various
witnesses regarding the law of perjury.\19\ The Committee heard
from the Hon. Gerald B. Tjoflat, United States Circuit Judge,
United States Court of Appeals for the Eleventh Circuit; the
Hon. Charles E. Wiggins, United States Circuit Judge, United
States Court of Appeals for the Ninth Circuit; the Hon. A. Leon
Higginbotham, Jr., Paul, Weiss, Rifkind, Wharton & Garrison,
Washington, D.C.; the Hon. Elliot Richardson, Milbank, Tweed,
Hadley & McCloy, Washington, D.C.; Admiral Leon A. Edney,
U.S.N. (Ret.); Lieutenant General Thomas P. Carney, U.S.A.
(Ret.); Professor Alan Dershowitz, Felix Frankfurter Professor
of Law, Harvard Law School; Professor Stephen Saltzburg, Howrey
Professor of Trial Advocacy, Litigation, and Professional
Responsibility, George Washington University Law School;
Professor Jeffrey Rosen, Associate Professor of Law, George
Washington University Law School; Ms. Pam Parsons, Atlanta,
Georgia; and Dr. Barbara Battalino, Los Osos, California,
accompanied by her attorney, Mr. Curtis Clark. Ms. Parsons and
Dr. Battalino were prosecuted for perjury arising out of civil
cases which had many similarities to the Jones v. Clinton case.
---------------------------------------------------------------------------
\19\ The Consequences of Perjury and Related Crimes: Hearing before
the Comm. on the Judiciary, 105th Cong., 2nd Sess. (December 1, 1998).
---------------------------------------------------------------------------
After several months of requesting the White House to
submit witnesses, the White House notified the Committee on
Friday, December 4, that they wished to call witnesses. This
was after the Chairman had already announced that the Committee
would consider articles of impeachment the following week. The
Committee accommodated the White House's request, and held two
lengthy days of hearings. The White House's witnesses were Mr.
Gregory B. Craig, Assistant to the President and Special
Counsel; The Honorable Nicholas Katzenbach, former Attorney
General of the United States under President Johnson and Under
Secretary of State; Professor Bruce Ackerman, Sterling
Professor of Law and Political Science at Yale University;
Professor Sean Wilentz is the Dayton Stockton Professor of
History and Director of Program and American Studies at
Princeton University; Professor Samuel H. Beer, Eaton Professor
of the Science of Government Emeritus at Harvard University;
The Honorable Elizabeth Holtzman, a former representative from
New York and member of the House Judiciary Committee during the
1974 impeachment proceeding; The Honorable Robert J. Drinan,
S.J., Professor at Georgetown University Law Center and a
former representative from Massachusetts and member of the
House Judiciary Committee during the 1974 impeachment
proceeding; The Honorable Wayne Owens, a former representative
from Utah and member of the House Judiciary Committee during
the 1974 impeachment proceeding; James Hamilton, a member of
the Washington, D.C. law firm of Swidler, Berlin, Shereff &
Friedman; Richard Ben-Veniste; Richard J. Davis, a partner with
the New York law firm of Weil, Gotschal & Manges; Edward S.G.
Dennis, Jr., a partner in the Litigation Section of the
Philadelphia law firm of Morgan, Lewis & Bockius; William F.
Weld, a former two-term governor of Massachusetts and currently
a partner in the Chicago law firm of McDermott, Will & Emery;
Ronald Noble, Associate Professor of Law at NYU Law School; and
Mr. Charles F.C. Ruff, Counsel to the President.\20\ The
Committee ordered printed Mr. Ruff's submission to the
Committee.\21\
---------------------------------------------------------------------------
\20\ Hearings on Impeachment Inquiry Pursuant to H. Res. 581:
Hearing before the Comm. On the Judiciary, 105th Cong., 2nd Sess.
(December 9, 1998).
\21\ Submission by Counsel for President Clinton to the Committee
on the Judiciary of the United States House of Representatives, House
Comm. on the Judiciary, Comm. Print, Ser. No. 16, 105th Cong., 2nd
Sess. (December 1998).
---------------------------------------------------------------------------
H. Res. 611
Finally, on December 10, 11, and 12, 1998, the Committee
considered and passed an original resolution containing four
articles of impeachment. The procedure used to consider the
articles of impeachment was similar to and predicated upon the
procedures used in 1974. Prior to the consideration of the
articles, Representative Sensenbrenner moved the resolution's
favorable recommendation to the House. After the clerk of the
Committee reported the resolution, the Committee approved
Chairman Hyde's unanimous consent request that provided in
pertinent part that ``. . . the proposed articles shall be
considered as read and open for amendment. Each proposed
article and any additional article, if any, shall be separately
voted upon, as amended, for the recommendation to the House, if
any article has been agreed, the original motion shall be
considered as adopted and the Chairman shall report to the
House said resolution of impeachment, together with such
articles as have been agreed to.'' \22\ Four articles of
impeachment were adopted and ordered reported to the House.
Article One, as amended, was ordered favorably reported by a
vote of 21 to 16. Article Two was ordered favorably reported by
a vote of 20 to 17. Article Three was ordered favorably
reported by a vote of 21 to 16. Article Four, as amended, was
ordered favorably reported by a vote of 21 to 16.
---------------------------------------------------------------------------
\22\ See House Committee on the Judiciary Business Meeting, at 3-6,
December 10, 1998 (unofficial transcript).
---------------------------------------------------------------------------
Although not germane to the consideration of a privileged
impeachment resolution, Chairman Hyde and the Committee agreed
to consider a joint resolution sponsored by Mr. Boucher that
would have rebuked President Clinton by expressing the sense of
Congress with respect to President Clinton's behavior. This
joint resolution of censure offered by Mr. Boucher was defeated
by a vote of 14 ayes to 22 nays with one member voting present.
On December 16, 1998, the Committee reported H. Res. 611 as
an original resolution containing the articles of impeachment
(H. Rept. 105-830). The full House debated H. Res. 611 on
December 18 and 19. Articles one and three, having to do with
perjury before the grand jury and obstruction of justice
respectively, passed the House on December 19.\23\ Article One
was agreed to by a vote of 228 to 206 and Article Three was
agreed to by a vote of 221 to 212.\24\
---------------------------------------------------------------------------
\23\ 144 Cong. Rec. H12040-H12042 (daily ed. December 19, 1998).
\24\ Id.
---------------------------------------------------------------------------
H. Res. 614
After passage of H. Res. 611, Chairman Hyde introduced H.
Res. 614, which appointed Representatives Hyde, Sensenbrenner,
McCollum, Gekas, Canady, Buyer, Bryant, Chabot, Barr,
Hutchinson, Cannon, Rogan, and Graham as managers on behalf of
the House of Representatives. H. Res. 614 authorized the
managers to, inter alia, exhibit articles of impeachment in the
Senate.\25\ After the resolution passed by a vote of 228 to
190, the managers hand carried the official notice to the
Senate and H. Res. 611, as passed by the House, to the
Secretary of the Senate.
---------------------------------------------------------------------------
\25\ Id. at H12042-H12043.
---------------------------------------------------------------------------
Legislative Activities
Antitrust
Need-Based Educational Aid Antitrust Protection Act of 1997--H.R. 1866
(Public Law 105-43)
Summary.--Beginning in the mid-1950s, a number of
prestigious private colleges and universities agreed to award
institutional financial aid (i.e., aid from the school's own
funds) solely on the basis of demonstrated financial need. In a
recent year, institutional aid at all colleges and universities
amounted to about $8.6 billion as compared to federal aid of
about $6.6 billion. These schools also agreed to use common
principles to assess each student's financial need and to give
essentially the same financial aid award to students admitted
to more than one member of the group. Among the schools
engaging in this practice were the Ivy Overlap Group (Brown,
Columbia, Cornell, Dartmouth, Harvard, Princeton, Penn, Yale,
and MIT) and the Pentagonal/Sisters Overlap Group (Amherst,
Williams, Wesleyan, Bowdoin, Dartmouth, Barnard, Bryn Mawr,
Mount Holyoke, Radcliffe, Smith, Vassar, Wellesley, Colby,
Middlebury, Trinity, and Tufts).
From the 1950s through the late 1980s, the practice
continued undisturbed. In 1989, the Antitrust Division of the
Department of Justice brought suit against the nine members of
the Ivy Overlap Group to enjoin these practices. In 1991, the
eight Ivy League schools (i.e. all of the Ivy Overlap Group
except for MIT) agreed to a consent decree that for all
practical purposes ended the practices of the Overlap Group.
See United States v. Brown University, 1991 U.S. Dist. Lexis
21168, 1993-2 Trade Cases para. 70,391 (E.D. Pa. 1991).
In 1992, Congress passed a temporary antitrust exemption to
allow the schools to agree to award financial aid on a need-
blind basis and to use common principles of needs analysis.
Higher Education Amendments of 1992, section 1544, Public Law
102-325, 106 Stat. 448, 837 (1992). This temporary exemption
specifically prohibited any agreement as to the terms of a
financial aid award to any specific student. By its terms, it
expired on September 30, 1994.
In the meantime, MIT continued to contest the lawsuit.
After a non-jury trial, the district court ruled that the
practices of the Overlap Group violated the antitrust laws, but
specifically invited a legislative solution. United States v.
Brown University, 805 F.Supp. 288 (E.D. Pa. 1992). On appeal,
MIT won a reversal of the district court's decision. United
States v. Brown University, 5 F.3d 658 (3d Cir. 1993). The
appeals court held that the district court had not engaged in a
sufficiently thorough antitrust analysis and remanded for
further consideration. After that decision, the parties reached
a final settlement.
In 1994, Congress passed another temporary exemption from
the antitrust laws. Improving America's Schools Act of 1994,
section 568, Public Law 103-382, 108 Stat. 3518, 4060 (1994).
This exemption resembled the one passed in 1992 in that it
allowed agreements to provide aid on the basis of need only and
to use common principles of needs analysis. It also prohibited
agreements on awards to specific students. However, unlike the
1992 exemption, it also allows agreement on the use of a common
aid application form and the exchange of the student's
financial information through a third party. Section 568
roughly mirrors the settlement reached in 1993. It provided for
this exemption to expire on September 30, 1997.
Under the exemption passed in 1994, the affected schools
have recently adopted a set of general principles to determine
eligibility for institutional aid. These principles address
issues like expected contributions from non-custodial parents,
treatment of depreciation expenses which may reduce apparent
income, valuation of rental properties, and unusually high
medical expenses. Common treatment of these types of issues
makes sense, and the existing exemption has worked well. H.R.
1866, as passed by the House, would have made the exemption
passed in 1994 permanent. It would not have made any change to
the substance of the exemption. The Senate amendment, which
ultimately became law, provides for a 4-year extension of the
exemption and it makes some minor technical changes to the
information sharing provision of the exemption.
The need-based financial aid system serves social goals
that the antitrust laws do not adequately address--namely,
making financial aid available to the broadest number of
students solely on the basis of demonstrated need. Without it,
the schools would be required to compete, through financial aid
awards, for the very top students. Those very top students
would get all of the aid available which would be more than
they need. The rest would get less or none at all. Ultimately,
such a system would serve to undermine the principles of need-
based aid and need-blind admissions. No student who is
otherwise qualified ought to be denied the opportunity to go to
one of the nation's most prestigious schools because of the
financial situation of his or her family. H.R. 1866 will help
protect need-based aid and need-blind admissions and preserve
that opportunity.
Legislative History.--On June 11, 1997, Representatives
Lamar Smith and Barney Frank introduced H.R. 1866, the ``Need-
Based Educational Aid Antitrust Protection Act of 1997,'' which
was referred to the Committee on the Judiciary. On June 18,
1997, the full Committee met and ordered the bill reported
favorably by a voice vote.
On June 23, 1997, the Committee favorably reported the bill
to the House, H. Rept. 105-144. The same day, the House
suspended the rules and passed H.R. 1866 by voice vote. On July
30, 1997, the Senate passed H.R. 1866 with an amendment by
unanimous consent. On September 8, 1997, the House suspended
the rules and agreed to the Senate amendment to H.R. 1866 by
voice vote. On September 17, 1997, the President signed H.R.
1866 into law as Public Law 105-43.
The Curt Flood Act of 1998--S. 53 (Public Law 105-297)
Summary.--The Supreme Court first held that the business of
baseball is exempt from the antitrust laws in 1922. Federal
Baseball Club of Baltimore, Inc. v. National League of
Professional Baseball Clubs, 259 U.S. 200 (1922). The Court,
emphasizing organized baseball's longstanding reliance on that
exemption, twice declined to overrule its original 1922
decision. Flood v. Kuhn, 407 U.S. 258 (1972); Toolson v. New
York Yankees, Inc., 346 U.S. 356 (1953). Instead, the Court
left Congress to decide whether the baseball exemption should
continue.
Congress decided to legislate in this area this year, but
it did so only in an extremely narrow manner. S. 53 leaves
completely unchanged all aspects of the baseball antitrust
exemption except for the narrow issue of the labor relations of
major league players at the major league level as set out in
detail in the new subsection 27(b) of the Clayton Act.
This bill originates from a compromise struck during the
last round of collective bargaining between the major league
owners and the major league players. After a lengthy labor
dispute, these parties reached a collective bargaining
agreement that, among other things, required negotiation to
reach agreement on a limited repeal of baseball's antitrust
exemption. They did so because the players' union argued that
the antitrust exemption contributed to the labor disputes that
have long marked its relationship with the owners.
Specifically, the union asserted that it was disadvantaged in
its labor negotiations with the owners because, unlike unions
of other professional athletes, it could not challenge
allegedly unlawful employment terms under the antitrust laws.
The major league clubs disagreed with this view. They
contended that the baseball exemption was irrelevant to their
labor negotiations with the union. The clubs argued that, like
every other multi-employer bargaining group, they were
protected from antitrust challenges to their employment terms
by the nonstatutory labor antitrust exemption.
As a result of this difference of opinion, both the players
and the owners were willing to support the repeal of the
specific and narrow portion of the baseball exemption covering
labor relations between major league players and major league
clubs. The bill was carefully drafted, however, to leave the
remainder of the exemption intact.
Before this bill passed the Senate, several changes were
adopted to address concerns raised by owners of the minor
league teams--the members of the National Association of
Professional Baseball Leagues. Minor league baseball owners
were concerned that the original bill reported by the Senate
Judiciary Committee might not adequately protect their
interests. Specifically, the minor league clubs were concerned
that the original version of S. 53 was not sufficiently clear
to preserve antitrust protection for: (1) the relationship
between the major league clubs and the minor league clubs and
(2) those work rules and employment terms that arguably affect
both major league and minor league baseball players.
Members of Congress agreed that this narrow legislation
should not hurt the grass roots minor league baseball played in
over 150 towns across the country. For that reason, the minor
league clubs were invited into the discussion and given an
opportunity to suggest changes to address their concerns, and
those changes were incorporated.
As a result of these three-way negotiations, the parties
agreed to amend the bill in several significant ways. These
amendments clarify the limited reach of the bill and the
expansive nature of the continued protection the bill affords
to minor league baseball. For instance, to accommodate the
concerns of the minor league clubs, subsection (b) of the new
section 27 of the Clayton Act was changed by adding the word
``directly'' immediately before the phrase ``relating to or
affecting employment'' and the phrase ``major league players''
was added before the phrase ``to play baseball.'' These changes
were made to ensure that neither major league players nor minor
league players could use new subsection (a) to attack conduct,
acts, practices, or agreements designed to apply to minor
league employment.
In addition, new subsection (c) was added to clarify that
only major league players could sue under the new subsection
(a). Again, the minor leagues were concerned that, without a
narrow standing section, minor league players or amateurs might
attempt to attack minor league issues by asserting that these
issues also indirectly affected major league employment terms.
Therefore, the new subsection (c) carefully limits the zone
of persons protected by the bill to only major league players
by providing that ``only a major league baseball player has
standing to sue under'' this limited antitrust legislation. The
standing provision gives major league baseball players the same
right to sue under the antitrust laws over the major league
employment terms that other professional athletes have. Of
course, the United States has standing to sue to enjoin all
antitrust violations under 15 U.S.C. Sec. Sec. 4 and 25, and
subsection 27(c) was not intended to limit that broad
authority.
This bill does not affect the application of the antitrust
laws to anyone outside the business of baseball. In particular,
it does not affect the application of the antitrust laws to
other professional sports. The law with respect to the other
professional sports remains exactly the same after this bill
becomes law.
The Ranking Member of the Judiciary Committee,
Representative John Conyers, had his own bill on this topic,
H.R. 21, and his work was instrumental in bringing about the
successful completion of this legislation.
Legislative History.--Senators Hatch, Leahy, Thurmond, and
Moynihan introduced S. 53 on January 21, 1997, and it was
referred to the Senate Committee on the Judiciary. On October
29, 1997, the Committee reported the bill favorably to the
Senate with an amendment by an 11-6 vote. S. Rept. 105-118. On
July 30, 1998, S. 53, as amended, passed the Senate by
unanimous consent with an additional floor amendment.
On July 31, 1998, S. 53 was referred to the House Committee
on the Judiciary. On October 7, 1998, the Committee was
discharged from further consideration. The same day, the House
suspended the rules and passed S. 53, as it was passed by the
Senate, by a voice vote. On October 27, 1998, the President
signed S. 53 into law as Public Law 105-297.
Charitable Donation Antitrust Immunity--H.R. 1902 (Public Law 105-26)
Summary.--The ``Charitable Donation Antitrust Immunity Act
of 1997'' provides antitrust immunity to those involved in
raising charitable donations in the form of charitable gift
annuities and charitable remainder trusts. The exemption
extends to both federal and state law, although a state would
have until 1998 to expressly override application of the Act to
its state antitrust laws.
Charitable gift annuities and charitable remainder trusts
are fundraising instruments defined and regulated under
sections 501(m)(5) and 664(d) of the Internal Revenue Code. A
person who enters into a gift annuity or charitable remainder
trust agreement with a religious, charitable or educational
institution makes a gift to the institution and receives a
fixed income for life. Since the value of the gift received is
more than the property transferred to the donor, a bargain sale
has occurred, and the difference in values is deductible to the
donor. See 26 U.S.C. Sec. 1011(b).
The annuity rate applied to the value of the gift is the
critical element in ensuring that the transaction will result
in a meaningful gift to the charity. The American Council on
Gift Annuities, a non-profit organization representing more
than 1,500 charitable organizations and institutions, provides
technical assistance to its members in determining appropriate
annuity rates. The rates recommended by the Council are based
on actuarial studies of mortality experience among annuitants
and a conservative projection of the rate of income to be
earned on invested reserve funds. They are computed to produce
an average ``residuum'' or gift to the organization of between
40 and 60 percent of the amount originally donated under the
agreement. Consequently, the rates are lower than and are not
in competition with any rates offered commercially.
The Council promotes the use of its rates for two reasons.
First, it protects the fiscal integrity of the charity.
Offering gift annuities at rates higher than the recommended
rates may jeopardize the gift that is to be available to the
charity. If the rate is too high, other funds or the general
assets of the organization may be required to carry out the
terms of the agreement. Second, it ensures that donative intent
rather than financial gain motivates the choice of recipient.
Use of consistent annuity rates, and thus equal rates of
return, assure a ``level playing field'' for charities, so that
a donor's choice of the charitable beneficiary of a gift
annuity will depend on the relative merits of the institutions
under consideration in the subjective judgment of the donor.
Charitable giving through gift annuities and charitable
trusts was threatened by a lawsuit pending in the United States
District Court for the Northern District of Texas. Richie v.
American Council on Gift Annuities, Inc. (Civ. No. 7:94-CV-128-
X). The Richie suit, as originally filed, alleged that the use
of the same annuity rate by the various charities constituted
price fixing, and thus a violation of the antitrust laws. The
complaint sought to enjoin the charities from offering gift
annuities using the Council's tables, to obtain a refund, and
to recover treble damages.
In recognition of the potential impact of this litigation
on charitable giving, Congress enacted the ``Charitable Gift
Annuity Antitrust Relief Act of 1995'' (15 U.S.C. section 37,
et seq.), which grants antitrust protection to entities
described in section 501(c)(3) of the Internal Revenue Code and
exempt from taxation, and which issue charitable gift
annuities. It specifies that agreeing to use, or using the same
annuity rate for the purpose of issuing one or more charitable
gift annuity is not unlawful under the antitrust laws. The
exemption extends to both Federal and State law, although a
state would have 3 years after enactment to expressly override
application of the bill to its state antitrust laws.
Enactment of the 1995 Act was anticipated to provide a
complete defense to the antitrust portions of Richie, as well
as protection from future suits based on the use of agreed-upon
annuity rates. That did not prove to be the case. A decision by
the United States Court of Appeals for the Fifth Circuit, Ozee
v. American Council on Gift Annuities, Inc., 110 F.3d 1082 (5th
Cir. 1997), upheld the denial of a motion to dismiss based on
an assertion of the new antitrust exemption. That decision, and
the ruling of the District Court, indicated that the Charitable
Gift Annuity Antitrust Relief Act of 1995 was not being
interpreted as broadly as it was intended by Congress.
H.R. 1902 replaced then-current law with language drafted
in broader terms, so as to ensure that the provision would be
interpreted by the courts in a manner which would achieve the
goals of the 1995 Act. Enactment of the Act was intended to
obviate the need for further litigation over the antitrust
portions of the Richie case, in that it extended complete
immunity to all defendants being sued for participation in the
issuance of a charitable gift annuity or charitable remainder
trust.
Legislative History.--Chairman Hyde introduced H.R. 1902 on
June 17, 1997, along with eight original co-sponsors. The
Committee ordered it reported by voice vote on June 18, 1997.
House Report 105-146. It passed the House under suspension of
the rules on June 23, 1997, and was approved by the Senate by
voice vote on June 24, 1997. H.R. 1902 was approved by the
President on July 3, 1997, and became Public Law 105-26.
Health Care and Antitrust--H.R. 415 and H.R. 4277
Summary.--In recent years, health insurers and health
maintenance organizations (HMOs) have increasingly asserted
control over health care decisions that doctors and patients
once made. The insurers and HMOs contend that these kinds of
controls are necessary to keep prices low and to keep health
insurance coverage affordable. Doctors contend that these kinds
of controls invade the traditional doctor-patient relationship
and that they keep prices so low that doctors cannot practice
economically. Doctors further contend that in negotiating
contracts that establish these controls the insurers have much
greater bargaining power than do individual doctors.
In response to this problem, doctors have formed their own
networks to compete with HMOs. However, there has been
considerable debate about the question of to what degree
doctors must combine their practices to form a network without
being charged with price fixing. In August 1996, the antitrust
enforcement agencies, the Department of Justice and the Federal
Trade Commission, issued joint guidelines on this topic, and
they appear to be working well. Nonetheless, to maintain some
focus on this issue, Chairman Hyde with 17 cosponsors
introduced H.R. 415 which would have further addressed this
issue. However, because the Committee believe the guidelines
were working successfully, it took no further action on H.R.
415.
A separate bill introduced by Representative Tom Campbell
and four cosponsors on July 20, 1998, H.R. 4277, takes a
different approach--i.e., that doctors ought to have the same
antitrust exemption that labor unions have when they are
negotiating with HMOs. Proponents of H.R. 4277 argue that
doctors will be able to get a fair deal in these negotiations
only if they are allowed to band together to negotiate with
insurers and HMOs. They argue that doctors cannot engage in
these kinds of joint negotiations without an antitrust
exemption. They also believe that patients will be better
served because the doctors will use their greater bargaining
power to seek contracts that allow the insurers less control
over patient care.
Critics of H.R. 4277 argue that it would harm consumers
because it would allow doctors to fix prices and engage in
group boycotts thereby driving up the cost of insurance. The
bill places no limits on the percentage of providers in a
market that could band together. Thus, doctors, particularly in
smaller markets, could exercise high degrees of market power.
They also contend that under the guidelines, doctors are free
to band together and negotiate directly with employers if they
do not like the deals they get with insurers. Ultimately, they
argue that the bill would end the ability of competitive forces
to control health care costs and to improve efficiency.
Legislative History.--On July 29, 1998, the full Committee
held a hearing on H.R. 4277 at which the following witnesses
appeared: Hon. Tom Campbell, United States Representative, 15th
District of California; Hon. Robert Pitofsky, Chairman, Federal
Trade Commission, Washington, D.C.; Dr. Donald Palmisano,
Member, Board of Trustees, American Medical Association,
Metairie, Louisiana; Dr. Michael Connair, Federation of
Physicians and Dentists, American Federation of State, County,
and Municipal Employees, North Haven, Connecticut; Mr. Stephen
deMontmollin, Vice President and General Counsel, AV-MED Health
Plan, Gainesville, Florida, on behalf of the American
Association of Health Plans; Karen Fennell, R.N., M.S., Senior
Policy Analyst, American College of Nurse-Midwives, Washington,
D.C., on behalf of the Antitrust Coalition.
Liability Issues
Volunteer Protection--H.R. 911/S. 543 (Public Law 105-19)
Summary.--H.R. 911, the Volunteer Protection Act, promotes
the interests of social services program beneficiaries and
taxpayers, and sustains the availability of programs, non-
profit organizations, and governmental entities that depend on
volunteer contributions, by providing volunteers reasonable
protections from legal liability.
Volunteer service has become a high risk venture. From
school chaperones to Girl Scout and Boy Scout troop leaders to
Big Brothers and Big Sisters, volunteers perform valuable
services. But rather than thanking these volunteers, our
current legal system allows them to be dragged into court and
subjected to needless and unfair lawsuits. In most instances
the volunteer is ultimately found not liable, but the potential
for unwarranted lawsuits creates an atmosphere where too many
people are pointing fingers and too few remain willing to offer
a helping hand.
The need for relief from these debilitating lawsuits has
increased over the last two decades. The fear of being sued has
had an impact on volunteerism, in that it has caused non-profit
organizations to stop offering certain kinds of programs,
caused potential volunteers to stay home, and led to an
increase in the cost of insurance against potential verdicts.
The effect of this increase in litigation--and the media
attention it has drawn--has been to dampen the willingness of
people to give of their time to charity. Statistics show that
the rates at which people volunteer are on the decline,
particularly in categories where longstanding commitments are
required. According to a report by the Independent Sector, the
percentage of Americans volunteering dropped from 54 percent in
1989 to 51 percent in 1991 and 48 percent in 1993. The Gallup
organization studied volunteerism and found, in a study titled
``Liability Crisis and the Use of Volunteers of Nonprofit
Associations'' that approximately 1 in 10 nonprofit
organizations had experienced the resignation of a volunteer
due to liability concerns. Gallup also found that 1 in 6
volunteers reported withholding services due to a fear of
exposure to liability suits. And, 1 of 7 nonprofit agencies had
eliminated one or more of their valuable programs because of
exposure to lawsuits.
The increase in liability concerns is also evidenced by the
increase in the liability insurance costs of nonprofit
organizations. The average reported increase for insurance
premiums for nonprofits over the period 1985-1988 was 155%. One
in eight organizations reported an increase of over 300%.
Little League Baseball reports the liability rate for a league
increased from $75 to $795 in just 5 years. In fact, the Little
League's major expenditure is not bats and balls, but the cost
of obtaining insurance against liability. Many leagues cannot
pay the $795 needed, so they operate their programs without
coverage or discontinue the program altogether.
It is not enough to leave it to the States to solve this
problem. Volunteerism is a national activity and the decline in
volunteerism is a national concern. And in many cases,
volunteer activities cross state lines. Even a local group may
operate across state lines. A Boy Scout troop in Georgia may go
on an outing in Tennessee or Alabama. A Little League team
might routinely play games in Virginia, Maryland and the
District of Columbia. A meals-on-wheels volunteer might daily
deliver meals in Kansas City, Kansas, and Kansas City,
Missouri. In emergency situations and disasters, such as
hurricanes or the floods in our upper Midwest states,
volunteers come from many states. Although every state now has
a law pertaining specifically to legal liability of at least
some types of volunteers, many volunteers remain fully liable
for any harm they cause, and all volunteers remain liable for
some actions. Only about half of the states protect volunteers
other than officers and directors. Moreover, every volunteer
protection statute has exceptions. As a result, state volunteer
protection statutes are patchwork and inconsistent. In many
states, the volunteer leaders are granted immunity while the
direct service providers remain exposed. Substantially
different civil justice standards apply to volunteers of the
same organization, providing the same services, depending on
the state in which the service is delivered. This inconsistency
hinders national organizations from accurately advising their
local chapters on volunteer liability and risk management
guidelines.
The patchwork quality of State volunteer liability laws
also has a negative effect on the cost of insurance. Because of
the small size of the market for volunteer liability insurance,
insurers do not differentiate among the States. Thus,
regardless of the State in which organization operates, and how
broad or how narrow the relevant State volunteer protection
law, the price for insurance will be the same. This means that
not only are nonprofit organizations forced to use their scarce
resources to pay for insurance, but that those in States where
the law is protective are forced to vastly overpay if they wish
to obtain coverage at all.
H.R 911 is intended to eliminate these barriers to
obtaining volunteer services. As introduced by Congressman John
Porter, it provided incentives to states to enact legislation
which would eliminate tort liability of any volunteer if (1)
the volunteer was acting in good faith and within the scope of
the volunteer's official functions and duties within volunteer
organization, and (2) the damage or injury at issue was not
caused by the volunteer's willful and wanton misconduct. A
state which could certify within 2 years of enactment that it
had adopted such reforms would have been entitled to an
additional one percent allotment in the State's Social Services
Block Grant award. However, the Committee adopted an amendment
in the nature of a substitute which takes a more direct
approach to the problem. H.R. 911, as amended, preempts State
law to provide that volunteers would not be liable for harm if
(1) they were acting in the scope the volunteer activity, (2)
they were properly licensed (if necessary), (3) the harm was
not caused by willful or criminal misconduct, gross negligence,
reckless misconduct, or a conscious, flagrant indifference to
the rights or safety of the claimant, and (4) the harm was not
caused by the volunteer operating a vehicle.
In addition, H.R. 911 as amended does not allow punitive
damages to be awarded against a volunteer unless the harm was
caused by willful or criminal misconduct, or a conscious,
flagrant indifference to the rights or safety of the claimant.
In a suit against a volunteer, the volunteer's liability for
noneconomic damages would be several but not joint. H.R. 911
allows the States to opt out of coverage under certain
circumstances. It also specifies certain conditions and
restrictions which a state could impose without being
inconsistent with the Act. It further exempts from coverage any
misconduct which constitutes a crime of violence, an act of
international terrorism, a hate crime, a sexual offense, a
violation of a civil rights law, or where the volunteer was
under the influence of drugs or alcohol.
Legislative History.--H.R. 911 was introduced by
Congressman Porter on March 4, 1997, and ultimately garnered
156 cosponsors. The Full Committee held a hearing on H.R. 911
on April 23, 1997. On May 13, 1997, the Committee ordered H.R.
911 reported, as amended, by a recorded vote of 20 ayes to 7
nays. House Report 105-101. It was approved by the House of
Representatives on May 21, 1997, under suspension of the rules,
by a vote of 390 ayes to 35 nays. On that day, the text of H.R.
911 was also agreed to as an amendment to S. 543, and the
Senate then agreed to the House amendment. S. 543 became law on
June 18, 1997, as Public Law 105-19.
Year 2000 Information and Readiness Disclosure Act--S. 2392 (Public Law
105-271)
Summary.--The Year 2000 Information and Readiness
Disclosure Act is intended to promote the voluntary sharing of
information needed to discover, avoid, or fix problems with
year 2000 calculations in our nation's software, computers, and
technology products. In all civil litigation including certain
antitrust actions, the Act limits the extent to which year 2000
statements can be the basis for liability and it prevents
certain evidentiary uses, against the maker, of a subset of
such statements. However, the Act ensures that only
responsible, good faith information-sharing gets such
protection.
In particular, the Act protects good faith sharing of two
kinds of year 2000 information: a broad category called ``year
2000 statements,'' and a narrower subcategory called ``year
2000 readiness disclosures.'' Year 2000 statements and
readiness disclosures can include any year 2000 related subject
matter, but year 2000 readiness disclosures must be in writing,
be clearly labeled, and concern one's own products or services.
Certain already-existing year 2000 statements may be designated
as year 2000 readiness disclosures and receive the protections
applicable to year 2000 readiness disclosures under the Act.
The protections given to year 2000 statements and readiness
disclosures protect all those who help in any way to make a
year 2000 statement or readiness disclosure, so a broad group
of individuals and entities are protected.
The Act encourages the use of the Internet to provide
notice of all matters relating to year 2000 processing. In
addition, the Act protects against disclosure and use in civil
actions year 2000 information voluntarily provided to the
government under a ``special data gathering request.'' Finally,
the Act creates a temporary exemption to the antitrust laws for
sharing of year 2000 information, unless it results in an
actual agreement to boycott, allocate markets, or fix prices.
The Act does not create new causes of action or expand any
existing causes of action, nor does it create new obligations
or duties. The Act does not create any duty to provide notice
about a year 2000 processing problem. The intent of this
legislation is to promote sharing of year 2000 information.
This would be frustrated if any year 2000 statement were the
sole basis for any finding of liability on the part of the
maker. Furthermore, it is not the intent of this legislation to
hold the maker of a year 2000 readiness disclosure liable for
the adequacy or sufficiency of its disclosure where such
disclosure is not otherwise required by law or contract. The
Act also does not affect existing contracts, tariffs,
intellectual property rights or consumer protections applicable
to solicitations or offers to sell consumer products.
The Act's protections are limited. The Act does not change
or address in any way liability for a year 2000 processing
failure; does not change or reduce any underlying duty,
standard of care or liability for a year 2000 failure; does not
apply to certain consumer transactions; does not prevent any
underlying facts regarding a failure from being demonstrated in
court; does not prevent any governmental entity from requiring
the disclosure of any information; and does not preclude any
claim to the extent it is not based on a year 2000 statement.
The Act prevents the use as evidence against the maker of
only a narrow range of year 2000 statements--year 2000
readiness disclosures--to prove the truth of the disclosure.
They can, however, be put into evidence to demonstrate matters
other than their truth. Further, year 2000 readiness
disclosures can be used in contract litigation as part of the
evidence necessary to show anticipatory breach, repudiation, or
similar actions, although they should not be the sole evidence
supporting liability. A judge can limit (but not totally
abrogate) this protection in order to prevent an abusive or
bad-faith use of the disclosure contrary to the purposes of the
Act.
Year 2000 statements other than year 2000 readiness
disclosures can be brought into evidence for any purpose.
However, they may not be the basis for any finding of liability
against the maker, except where the maker knew the statement
was false, made it with intent to deceive, or made it with
reckless disregard as to its truth or falsity.
In cases of alleged trade defamation, product
disparagement, and the like, year 2000 statements generally can
be the basis of liability only if the maker knew the statement
was wrong or was reckless about the statement's truth or
falsity.
Internet website notice is generally deemed adequate.
Important exceptions exist, however, and Internet website
notice alone is not deemed adequate in cases of personal injury
or serious property damage. In specified circumstances, in
order to obtain the benefits of the Act, sellers,
manufacturers, or providers of year 2000 remediation products
or services must inform their customers about the effects of
this Act during the course of solicitations or offers to sell.
For purposes of actions brought under the securities laws,
year 2000 statements contained in filings with the Securities
and Exchange Commission or Federal banking regulators and
disclosures or writings that, when made, accompanied the
solicitation of an offer or sale of securities are not covered
by the Act.
Legislative history.--At the request of the Administration,
S. 2392 was originally introduced as the Year 2000 Information
Disclosure Act by Senator Bennett, Chairman of the Senate
Select Committee on the Year 2000 Technology Problem. A number
of similar bills were introduced in the House and referred to
the Committee, including H.R. 4455 (Dreier) and H.R. 4355
(Burton).
After detailed negotiations with the Committee, the Senate
passed an amended version of S. 2392 on September 28, 1998. By
unanimous consent, the bill was called up by the House on
October 1, 1998, and it passed by voice vote. Chairman Hyde
inserted a statement on the bill into the Congressional Record
on October 9, 1998. 144 Cong. Rec. E2017 (daily ed. Oct. 10,
1998). Following that, on October 19, 1998, President Clinton
signed the bill into law, making it Public Law 105-271.
Matters Held at Full Committee
Balanced Budget Constitutional Amendment--H.J. Res 1 and S.J. Res. 1
On the opening day of the 105th Congress, Representative
Dan Schaefer introduced H.J. Res. 1, a balanced budget
constitutional amendment (with provisions identical to the
version that passed the House early in the previous Congress).
It was designed to discourage the federal government from
engaging in deficit spending, raising the public debt limit,
and increasing taxes. The amendment generally required a three-
fifths vote of the total membership of each House for laws
providing an excess of outlays over receipts [Section 1] and a
higher public debt ceiling [Section 2]--and a majority of each
House's total membership for laws increasing revenue. [Section
4] In addition, the President would be required to submit
balanced budgets to Congress. [ Section 3] Congress could waive
the Amendment's requirements for a fiscal year in which a
declaration of war was in effect. An alternative waiver
mechanism required a joint resolution (supported by a majority
of the total membership in each House) that became law--
declaring ``an imminent and serious military threat to national
security'' caused by U.S. engagement in military conflict.
[Section 5] The constitutional amendment would take effect
``beginning with fiscal year 2002 or with the second fiscal
year beginning after its ratification, whichever is later.''
[Section 8]
The major impetus for the balanced budget constitutional
amendment was concern about the rapidly mounting federal debt
and the impact of climbing interest payments on future
generations of Americans. Supporters of a constitutional
amendment pointed out over the years that--in spite of limited
successes--legislative efforts to move in the direction of a
balanced budget had not prevented unacceptable levels of
deficit spending.
The national debt had tripled during a recent 10-year
period, climbing from approximately $1.564 trillion at the end
of fiscal year 1984 to $4.644 trillion at the end of fiscal
year 1994--with the figure at $5.31 trillion on January 21,
1997. Interest paid by the U.S. Treasury (without offsetting
interest credited to trust funds) totaled approximately $344
billion for fiscal year 1996. For advocates of a balanced
budget amendment, such statistics underscored the need for
constitutional constraints. A constitutional amendment,
supporters contended, was not a substitute for difficult
legislative choices but rather a catalyst for congressional
action.
The full Committee held a hearing on H.J. Res. 1 on
February 3, 1997, at which testimony was received from Members
of Congress and witnesses supporting and opposing a
constitutional amendment. The witness list consisted of
Representatives Stenholm, Sabo, Cox, and Wise; Honorable Robert
E. Rubin, Secretary of the Treasury; Honorable Timothy Penny,
former Member of Congress and Member, Board of Directors,
Concord Coalition; Stuart M. Gerson, former Assistant and
Acting Attorney General; John E. Berthoud, Vice President,
Alexis de Tocqueville Institution; Professor Cass R. Sunstein,
University of Chicago Law School; and Eugene Lehrmann, Past
President, American Association of Retired Persons. The printed
hearing record (Serial No. 1) also incorporated a number of
written submissions, including a prepared statement of Martin
Anderson, Senior Fellow, the Hoover Institution, who could not
testify in person because of illness.
On February 5, 1997, the full Committee began a markup of
H.J. Res. 1. That markup, however, was not concluded because
developments in the Senate appeared to preclude a successful
balanced budget constitutional amendment effort in the 105th
Congress. On March 4, 1997, a Senate vote of 66 in favor to 34
opposed on a companion measure (S.J. Res. 1) fell short of the
two-thirds required by the Constitution.
Although the Congressional attempt to propose a balanced
budget constitutional amendment for ratification by the states
did not succeed, the Committee's efforts helped to focus
attention on the importance of effectuating balanced budget
principles. Congress did succeed in enacting a budget that
resulted in a surplus for fiscal year 1998--the first time this
had happened in decades.
Terms of Office for Members of the Senate and the House of
Representatives--H.J. Res. 2
On January 7, 1997, Representative McCollum introduced H.J.
Res. 2, a resolution proposing an amendment to the Constitution
of the United States with respect to the number of terms of
office of Members of the Senate and the House of
Representatives. Although the resolution was held at the full
Committee for purposes of markup, the Subcommittee on the
Constitution held an oversight hearing on the subject of term
limits. That hearing and the legislative history of H.J. Res. 2
are detailed in the Subcommittee section later in this report.
Partial-Birth Abortion Ban Act--H.R. 929 and H.R. 1122
On March 5, 1997, Representative Canady introduced H.R.
1122 and on March 19, 1997, Mr. Solomon introduced H.R. 1122,
different versions of the ``Partial-Birth Abortion Ban Act of
1997.'' Although the bills were held at the full Committee for
purposes of markup and floor consideration, the Subcommittee on
the Constitution held a joint oversight hearing with the Senate
Committee on the Judiciary on the subject of partial-birth
abortion. That hearing and the legislative history of H.R. 929
and H.R. 1122 are detailed in the Subcommittee section later in
this report.
Vacancies Act--H.R. 3420 (Section 151 of Public Law 105-277)
Summary.--On March 10, 1998, Chairman Hyde introduced the
``Department of Justice Vacancies Clarification Act of 1998''
with 12 Members of the Committee (Mr. Sensenbrenner, Mr. Gekas,
Mr. Coble, Mr. Smith, Mr. Canady, Mr. Inglis, Mr. Goodlatte,
Mr. Bryant, Mr. Barr, Mr. Hutchinson, Mr. Rogan, and Mr.
Graham) as cosponsors, and it was referred to the Committee.
This legislation would have ended the practice of appointing
acting personnel for indefinite periods of time to important
jobs in the Department of Justice. For too long, the Department
of Justice has used this method to evade the political
accountability provided by the Senate confirmation process.
In 1988, Congress reenacted the Vacancies Act to prevent
the filling of Executive Branch positions with acting personnel
for long periods. Generally speaking, the Vacancies Act
provides that a person may serve as an acting head of an office
for no more than 120 days. 5 U.S.C. Sec. 3348. These times are
tolled while a nomination is pending or when Congress has
adjourned sine die.
Most organic statutes for government departments have
language providing that the head of the agency may delegate his
functions to anyone within the Department. See, e.g., 28 U.S.C.
Sec. Sec. 509-10 (language for the Department of Justice). Both
Democrats and Republicans in the Executive Branch have
interpreted this kind of language to be an alternative method
of filling vacancies that is not subject to the 120-day period
provided in the Vacancies Act. That interpretation effectively
nullifies the Vacancies Act.
The Department of Justice Vacancies Clarification Act of
1998 would have clarified that the general language in the
Department of Justice statute is not intended to override the
Vacancies Act and that the Vacancies Act is the only method for
filling vacancies in the Department of Justice.
In addition, to insure that the language is not ignored,
the Act would have provided that when any acting person serves
beyond the time provided in the Vacancies Act, the United
States Circuit Court of Appeals for the District of Columbia
Circuit would step in to appoint someone to fill the job until
someone is nominated and confirmed. The Court could not appoint
a person who had previously served as an acting head for that
particular vacancy or a person who was nominated, but was not
confirmed. This is similar to language that already exists with
respect to United States Attorney positions. 28 U.S.C.
Sec. 546. The intent was not so much that the Court ought to
make such appointments, but to give the Executive Branch an
incentive not to let the time lapse.
A slightly different version of this legislation, which
applies to all government departments including the Department
of Justice, became law as section 151 of H.R 4328, the Omnibus
Appropriations Act for Fiscal Year 1999, Public Law 105-277.
Clarification That the Protections of the Federal Tort Claims Act Apply
to the National Gambling Impact Study Commission--H.R. 1901
(Public Law 105-30)
Summary.--In 1996, Congress passed the National Gambling
Impact Study Commission Act, Public Law 104-169, to provide for
a comprehensive 2-year study of the impact of gambling on the
United States. The nine members of the Commission were
appointed, and the Commission began meeting in the summer of
1997.
Shortly before the Commission's first meeting, two of its
members approached the Committee regarding their concerns about
incurring personal liability for their work on the Commission.
The Committee believed that the protections of the Federal Tort
Claims Act (``FTCA'') covered members and employees of the
Commission because it is an ``independent establishment of the
United States'' under 28 U.S.C. Sec. 2671. Normally, under the
FTCA, when someone sues a federal employee for acts occurring
within the scope of his or her employment, the United States
substitutes itself as the party, defends the action, and pays
any judgment.
The Committee initially believed that this matter could be
resolved by an exchange of letters with the Department of
Justice. However, after several weeks of study, the Department
was unable to clearly resolve its position as to whether the
Commission was covered under FTCA. Because the Commission was
about to begin its work, the Committee decided to move forward
with a legislative solution.
The bill that Chairman Hyde introduced, H.R. 1901, simply
provided that, for purposes of FTCA, the Commission is a
federal agency and its members and employees are federal
employees. The Department of Justice still makes the
determination of whether the particular conduct at issue is
within the scope of employment as it does in all FTCA cases.
See 28 U.S.C. Sec. 2679. Thus, members and employees of the
Commission did not receive any special treatment under this
law--rather, they will receive the same treatment as all other
federal employees. This treatment will apply equally to all
members and employees of the Commission. The Committee believed
that the members and employees should not have to put their
personal assets at risk in order to serve their country in this
important mission.
Legislative History.--On June 17, 1997, Chairman Hyde
introduced H.R. 1901, and it was referred to the Committee. On
June 18, 1997, the Committee ordered the bill reported
favorably to the House by a voice vote. On June 23, 1997, the
Committee reported the bill favorably to the House. H. Rept.
105-145. The same day, the House suspended the rules and passed
the bill by voice vote. On July 9, 1997, the Senate passed H.R.
1901 by unanimous consent. On July 25, 1997, the President
signed H.R. 1901 into law as Public Law 105-30.
Making a Technical Correction to Title 28, United States Code, Relating
to Jurisdiction for Lawsuits Against Terrorist States--H.R.
1225 (Public Law 105-11)
Summary.--In response to the revelation that the Libyan
government assisted in bombing Pan Am 103 over Lockerbie,
Scotland, the ``Antiterrorism and Effective Death Penalty Act
of 1996'' added a new subsection to the foreign sovereign
immunity provisions of title 28 of the United States Code.
Section 231 of Public Law 140-132. See 28 U.S.C.
Sec. 1605(a)(7). This new subsection provided that foreign
sovereign immunity would not shield countries that sponsor
terrorist acts against American citizens, like the bombing of
Pan Am 103, from civil liability in American courts. Under the
new subsection, American citizens can bring an action in
federal court for money damages against the country that
sponsored the terrorist act.
The intent of the drafters was that a family should have
the benefit of these provisions if either the victim of the act
or the survivor who brings the claim is an American citizen.
Due to a drafting error, the law as passed in 1996 required
that both the survivor and the claimant must be American
citizens before the claimant can use these provisions. H.R.
1225 corrected this drafting error and made it explicit that
the correction should apply to pending cases.
The correction benefitted several of the Pan Am 103
families in which one member is an American citizen and another
is not. For example, Mr. Bruce Smith, who has been one of the
leaders of the Pan Am 103 families, is an American citizen. His
wife, who died in the bombing, was a British citizen. Mr.
Smith, and several others in similar situations, stood to lose
their claims against Libya if this correction had not been
passed. The correction the bill made also applies to any future
cases in which American families are victimized by state
sponsored terrorism. H.R. 1225 only corrected this drafting
error and did not make any other change to the foreign
sovereign immunity provisions.
Legislative History.--On April 8, 1997, Chairman Hyde and
seven other Members (Mr. Conyers, Mr. McCollum, Mr. Schumer,
Mr. Canady, Mr. Wexler, Mr. Mica, and Mr. McNulty) introduced
H.R. 1225. The same day, the Committee ordered the bill
reported favorably to the House by a voice vote. On April 10,
1997, the Committee reported the bill favorably to the House.
H. Rept. 105-48. On April 15, 1997, the House suspended the
rules and passed the bill by voice vote. On April 24, 1997, the
Senate passed H.R. 1225 by unanimous consent. On April 25,
1997, the President signed H.R. 1225 into law as Public Law
105-11.
Victims' Rights Constitutional Amendment and Implementing Statute--H.J.
Res. 71 and H.R. 1322
Summary.--The modern victims' rights movement began in
1973, when the chief probation officer in Fresno County,
California began including victim impact statements with pre-
sentence investigation reports. Since that first stirring, the
movement has grown tremendously.
In 1982, California passed the first state constitutional
amendment to provide rights to victims of crimes. Shortly
thereafter, the report of the Presidential Task Force on
Victims of Crime recommended an amendment to the Sixth
Amendment of the federal constitution. This rather limited
amendment would have provided victims only the right to be
present and be heard at all critical stages of the proceedings.
Since the California amendment and the report of the
Presidential Task Force, 21 additional states have adopted some
form of a constitutional amendment to provide rights to victims
of crime. (These states are: Alabama, Alaska, Arizona,
Colorado, Florida, Idaho, Illinois, Kansas, Maryland, Michigan,
Missouri, Nebraska, New Jersey, New Mexico, Ohio, Rhode Island,
Texas, Utah, Virginia, Washington, and Wisconsin.) All 50
states have some form of victims' rights legislation.
Beginning in 1995, victims' rights advocates began to push
for a federal constitutional amendment. Senator Kyl, Senator
Feinstein, and Chairman Hyde introduced the first versions of
such an amendment on April 22, 1996. In June, 1996, President
Clinton endorsed the general concept of a federal
constitutional amendment, but did not endorse any particular
version of the amendment.
In the 105th Congress, Chairman Hyde introduced a new
version of the amendment, H.J. Res. 71, and Senator Kyl and
Senator Feinstein introduced a similar new version, S.J. Res.
6. These versions differ on a few points, but otherwise they
are almost identical. The major points of difference are: the
scope of the crimes to be covered, the nature of the right to
be free from unreasonable delay, the inclusion or exclusion of
a right to overturn sentences, and the breadth of the
exceptions clause.
In addition, this year Chairman Hyde also introduced an
implementing statute, H.R. 1322. This implementing statute
provides substantially more detail about how the new
constitutional amendment would work. The Administration has
participated in discussions about the various drafts of the
constitutional amendment, but it has not offered a draft that
it supports.
There is a fair amount of consensus on the underlying
policy that victims should play a larger role in criminal
cases, although there is some disagreement as to the details.
However, many question the need for a federal constitutional
amendment when there is already a constitutional amendment or a
statute in every state.
Victims' rights advocates contend that whenever the federal
constitutional rights of accused persons come into conflict
with the state rights of victims, the federal rights of the
accused always prevail. They also contend that existing state
constitutional amendments and statutes are not working because
judges and prosecutors do not take them seriously. Most states
specifically prohibit any action against judges and prosecutors
who refuse to enforce the statutory rights. For that reason,
they argue that these rights are dependent on the good will of
judges and prosecutors. They believe that the rights of victims
will never be taken seriously until they are formally
recognized in the federal constitution. Moreover, they say as a
matter of dignity, if the rights of the accused are formally
enshrined in the federal constitution, then the rights of the
victims ought to be also.
Advocates on the other side say that they generally agree
with the policies expressed in the various drafts of the
constitutional amendment, but they believe that a federal
constitutional amendment is a bad way of enacting that policy.
They say the amendment would have a profound and unknown effect
on the 50 state criminal justice systems as well as the federal
system. Once enacted, it would be almost impossible to change.
They argue that the Congress, sitting in Washington, cannot
possibly know the details of the 50 state systems and that by
enacting a constitutional amendment, it will cause many
unintended consequences. They say that constitutional rights
exist to protect unpopular people, like accused persons, and
that victims are very popular and have no trouble enacting
statutory solutions. Finally, they contend that the various
versions of the amendment do not resolve the question of whose
rights trump in a conflict because the drafts do not address
this question. They contend that this and other questions will
lead to years of litigation.
Legislative History.--On June 25, 1997, the full Committee
held a hearing on H.J. Res. 71 and H.R. 1322 at which the
following witnesses appeared: Hon. Deborah Pryce, United States
Representative, 15th District of Ohio; Hon. Janet Reno,
Attorney General of the United States, United States Department
of Justice, Washington, D.C.; Hon. George Kazen, Chief Judge,
United States District Court for the Southern District of
Texas, Laredo, Texas, on behalf of the Judicial Conference of
the United States; Hon. William Terrell Hodges, Judge, United
States District Court for the Middle District of Florida,
Jacksonville, Florida, on behalf of the Judicial Conference of
the United States; Hon. Joseph Weisberger, Chief Justice,
Supreme Court of Rhode Island, Providence, Rhode Island, on
behalf of the Conference of Chief Justices; Ms. Jacquelynn
Davis, Domestic Violence Victim, Dallas, Texas; Ms. Donna
Edwards, Executive Director, National Network to End Domestic
Violence, Washington, D.C.; Mr. Robert Horowitz, Prosecuting
Attorney, Stark County, Ohio, Canton, Ohio; Mr. Bruce Fein,
Constitutional Scholar and Syndicated Columnist, McLean,
Virginia.
Civil Asset Forfeiture Reform Legislation--H.R. 1835 and H.R. 1965
Summary.--Concern about the unfairness of current civil
asset forfeiture procedures and the need to infuse due process
protection into the process led Chairman Hyde to introduce
reform legislation in the 105th Congress, as he had done in the
previous two Congresses. See H.R. 1916, 104th Congress and H.R.
2417, 103rd Congress. On June 10, 1997, Chairman Hyde
introduced H.R. 1835 followed by H.R. 1965 on June 19, 1997,
both entitled the ``Civil Asset Forfeiture Reform Act.'' The
two bills would substantially reform civil asset forfeiture
procedures, but H.R. 1965 represented a bipartisan compromise
that had the support of the U.S. Department of Justice. When it
was introduced, H.R. 1965 superceded H.R. 1835 and received the
active consideration of the Committee.
Since early in the nation's history, ships and cargo
violating the customs laws were made subject to federal civil
forfeiture. Such forfeiture was vital to the federal treasury
for, at that time, customs duties constituted more than 80% of
federal revenues. Today, there are scores of federal forfeiture
statutes, both civil and criminal. They range from the
forfeiture of gamecocks used in cockfighting, to cigarettes
seized from smugglers, to property obtained from violations of
the Racketeer Influenced and Corrupt Organizations Act.
The Comprehensive Drug Abuse Prevention and Control Act of
1970 made civil forfeiture a weapon in the war against drugs.
The Act provides for the forfeiture of:
[a]ll controlled substances which have been
manufactured, distributed, dispensed, or acquired in
violation of this subchapter . . . [a]ll raw materials,
products, and equipment of any kind which are used, or
intended for use, in manufacturing . . . delivering,
importing, or exporting any controlled substance[s] . .
. in violation of this subchapter . . . [a]ll property
which is used, or intended for use, as a container for
[such controlled substances, raw materials, products or
equipment] . . . [a]ll conveyances, including aircraft,
vehicles or vessels, which are used, or intended for
use, to transport, or in any manner to facilitate the
transportation, sale, receipt, possession, or
concealment [of such controlled substances, raw
materials, products or equipment].
21 U.S.C. Sec. 881(a) .
In 1978, the Act was amended to provide for civil
forfeiture of:
[a]ll moneys, negotiable instruments, securities, or
other things of value furnished or intended to be
furnished by any person in exchange for a controlled
substance in violation of this subchapter, all proceeds
traceable to such an exchange, and all moneys,
negotiable instruments, and securities used or intended
to be used to facilitate any violation of this
subchapter . . . .
Section 301(a)(1) of the Psychotropic Substances Act of 1978
(found at 21 U.S.C. Sec. 881(a)(6)).
In 1984, the Act was amended to provide for the forfeiture
of:
[a]ll real property . . . which is used, or intended
to be used, in any manner or part, to commit, or to
facilitate the commission of, a violation of this
subchapter punishable by more than one year's
imprisonment. . . .''
Section 306(a) of the Comprehensive Crime Control Act of 1984
(found at 21 U.S.C.Sec. 881(a)(7)).
Prior to 1984, the monies realized from federal forfeitures
were deposited in the general fund of the United States
Treasury. Now they primarily go to the Department of Justice's
Assets Forfeiture Fund and the Department of the Treasury's
Forfeiture Fund. The money is used for forfeiture-related
expenses and various law enforcement purposes.
In recent years, enormous revenues have been generated by
federal forfeitures. The amount deposited in Justice's Assets
Forfeiture Fund (from both civil and criminal forfeitures)
increased from $27 million in fiscal year 1985 to $556 million
in 1993 and then decreased to $338 million in 1996. Of the
amount taken in 1996, $250 million was in cash and $74 million
was in proceeds of forfeitable property; $163 million of the
total was returned to state and local law enforcement agencies
who helped in investigations.
Federal forfeiture has proven to be a great monetary
success. And, as former Attorney General Richard Thornburgh
said: ``[I]t is truly satisfying to think that it is now
possible for a drug dealer to serve time in a forfeiture-
financed prison, after being arrested by agents driving a
forfeiture-provided automobile, while working in a forfeiture-
funded sting operation.''
The purposes of federal forfeiture were set out by Stefan
Cassella, Assistant Chief, Asset Forfeiture and Money
Laundering Section, Criminal Division, U.S. Department of
Justice, in testimony before this Committee on June 11, 1997:
Asset forfeiture has become one of the most powerful
and important tools that federal law enforcement can
employ against all manner of criminals and criminal
organizations--from drug dealers to terrorists to white
collar criminals who prey on the vulnerable for
financial gain. . . .
Federal law enforcement agencies use the forfeiture
laws for a variety of reasons, both time-honored and
new. . . . [They] allow the government to seize
contraband--property that it is simply unlawful to
possess, such as illegal drugs, unregistered machine
guns, pornographic materials, smuggled goods and
counterfeit money.
Forfeiture is also used to abate nuisances and to
take the instrumentalities of crime out of circulation.
If drug dealers are using a ``crack house'' to sell
drugs to children as they pass by on the way to school,
the building is a danger to the health and safety of
the neighborhood. Under the forfeiture laws, we can
shut it down. If a boat or truck is being used to
smuggle illegal aliens across the border, we can
forfeit the vessel or vehicle to prevent its being used
time and again for the same purpose. The same is true
for an airplane used to fly cocaine from Peru into
Southern California, or a printing press used to mint
phony $100 bills.
The government also uses forfeiture to take the
profit out of crime, and to return property to victims.
No one has any right to retain the money gained from
bribery, extortion, illegal gambling, or drug dealing.
With the forfeiture laws, we can separate the criminal
from his profits--and any property traceable to it--
thus removing the incentive others may have to commit
similar crimes tomorrow. And if the crime is one that
has victims--like car jacking or fraud--we can use the
forfeiture laws to recover the property and restore it
to the owners far more effectively than the restitution
statutes permit.
Finally, forfeiture undeniably provides both a
deterrent against crime and a measure of punishment for
the criminal. Many criminals fear the loss of their
vacation homes, fancy cars, businesses and bloated bank
accounts far more than the prospect of a jail sentence.
However, a number of years ago, as forfeiture revenue was
approaching its peak, some disquieting rumblings were heard.
The Second Circuit stated that ``[w]e continue to be enormously
troubled by the government's increasing and virtually unchecked
use of the civil forfeiture statutes and the disregard for due
process that is buried in those statutes.'' United States v.
All Assets of Statewide Auto Parts, Inc., 971 F.2d 896, 905
(2nd Cir. 1992). Newspaper and television exposes appeared
alleging that apparently innocent property owners were having
their property taken by federal and local law enforcement
officers with nothing that could be called due process.
H.R. 1965 was introduced to make federal civil forfeiture
procedures fair for property owners, to give owners innocent of
any wrongdoing the means to recover their property and make
themselves whole. H.R. 1965 is not designed to enfeeble federal
civil forfeiture efforts. To the contrary, as a consequence of
making civil forfeiture fairer, H.R. 1965 would expand the
reach of civil forfeiture and make it an even stronger tool of
law enforcement against criminals. H.R. 1965 would also expand
the reach of federal criminal forfeiture. Criminal forfeiture
is preferable to civil forfeiture because it has the built-in
procedural safeguards of the criminal law.
Hearing and Legislative History.--The Committee held a one
day of hearing on civil asset forfeiture reform on June 11,
1997. Testimony was received from Billy Munnerlyn, E.E. (Bo)
Edwards III, F. Lee Bailey, Susan Davis, Gerald B. Lefcourt,
Stefan D. Cassella, Deputy Chief, Asset Forfeiture and Money
Laundering Section, Criminal Division, U.S. Department of
Justice, Jan P. Blanton, Director, Executive Office for Asset
Forfeiture, Department of the Treasury, Bobby Moody, Chief of
Police, Marietta, Georgia, and 1st Vice President,
International Association of Chiefs of Police., and David
Smith. Additional material was submitted by Nadine Strossen,
President, American Civil Liberties Organization, and Roger
Pilon, Director, Center for Constitutional Studies, CATO
Institute.
On June 20, 1997, the Committee met in open session and
favorably reported H.R. 1965 to the House without amendment by
a recorded vote of 26 to 1. The bill did not come to the floor.
Department of Justice Appropriation Authorization Act, Fiscal Years
1999, 2000, and 2001--H.R. 3303
Summary.--H.R. 3303, the ``Department of Justice
Appropriation Authorization Act, Fiscal Years 1999, 2000, and
2001,'' is a comprehensive 3-year reauthorization of the
Justice Department's activities and programs. The bill contains
four titles. Title I authorizes appropriations to carry out the
work of the various components of the Department for fiscal
years 1999, 2000, and 2001. Title I largely adheres to the
Department's budget request for fiscal year 1999 by providing
$15,499,000,000, and it would authorize a 5% increase for
fiscal years 2000 and 2001. The proposed increases for fiscal
years 2000 and 2001, though an approximation of the
Department's actual budgetary requirements, are the result of
consultations with the Department and an analysis of the
historical trend. The Committee has a high degree of confidence
that the H.R. 3303 appropriation authorizations for fiscal
years 2000 and 2001 are accurate.
Section 151 of Title I would authorize the Attorney General
to transfer 200 lawyers from among the six litigating divisions
at Justice Department headquarters in Washington, D.C. to the
U.S. Attorneys. The provision is intended to raise the
productivity of Washington-based lawyers, who litigate criminal
and civil cases for the Department across the nation, by moving
them to the field.
Title II reauthorizes for two additional years a number of
successful programs whose authorizations will expire at the end
of fiscal year 1998. These reauthorized programs will, for
example, expedite the deportation of aliens who have been
denied asylum, combat violence against women, and fund
specialized training for and equipment to enhance the
capability of metropolitan fire and emergency service
departments to respond to terrorist attacks. Title II would
also amend the Communications Assistance for Law Enforcement
Act--also known as C.A.L.E.A.--by changing the effective date
for purposes of compliance, enforcement, and the
``grandfathering'' of telecommunications carrier equipment,
facilities, and services.
Title III would permanently authorize numerous inherent and
noncontroversial functions of the Department. Finally, Title IV
would, among other things, repeal the permanent open-ended
authorization of the United States Marshals Service, which is
unique among Department components. Title III of the bill would
grant the Marshals Service narrower permanent authority in line
with the permanent authority to be granted other Department
components.
Hearing and Legislative History.--The Committee held a 1-
day legislative hearing on H.R. 3303 on March 11, 1998.
Testifying at the hearing on behalf of the Justice Department
were Deputy Attorney General Eric H. Holder and Assistant
Attorney General for Administration Stephen Colgate. In
addition to this hearing, the Committee has conducted
substantial oversight of the Department's activities and
programs since the beginning of the 105th Congress. H.R. 3303
is the culmination of this extensive oversight.
The bill was marked up on April 29, 1998, and the Committee
ordered it reported, as amended, by a voice vote. On Monday,
June 22, 1998, the House passed the bill, as amended, on a
voice vote. On September 17, 1998, the Senate Committee on the
Judiciary reported the bill to the Senate with an amendment in
the nature of substitute, but the bill was not taken up on the
floor.
Protection From Intrusion on Privacy--H.R. 2448 and H.R. 3224
On May 21, 1998, the Committee held a hearing on
legislation to protect individuals from overly intrusive
conduct by the media. The witnesses were: Michael J. Fox, Paul
Reiser, Ellen Levin, Paul McMasters, David Lutman, Richard
Masur, Paul Tash, Barbara Cochran, Dick Guttman, Robert
Richards, and Larry Lessig.
American society has developed an increasingly voracious
appetite for information about and candid pictures of famous
people. Countless newspapers and magazines are devoted to
gossip about their activities and numerous television programs
are dedicated to reporting about them. As a result, there is a
great market for photographers to obtain pictures of
celebrities in their most private moments. This has led to the
proliferation of a new category of press to fill this demand, a
group often referred to as the paparazzi. Paparazzi often stalk
the famous hoping for that intimate or candid photo that can be
sold at a substantial profit.
The impact of the paparazzi is not limited to the people
who we commonly associate with the term ``celebrity.'' While it
is certainly true that stars of film, television, song, etc.
are often the subject of paparazzi attention, there are also
circumstances under which media attention becomes focused on
someone because of events that have occurred in their life.
Unlike persons whose livelihood depends on being noticed, and
who routinely court press attention by leaking items about
themselves and each other to raise their profiles, these
people's notoriety has been foisted on them unwittingly, and
often under circumstances involving personal pain. A good
example of this is Ellen Levin, whose daughter was the victim
of the ``Preppie Murder.'' The incident became the focus of
intense reporting.
Of course, the media must engage in newsgathering activity
in order to report on events of interest to the public, and
there is no clear line between the conduct engaged in by
aggressive investigative reporters and by the paparazzi.
Gathering information, including taking photographs, is First
Amendment activity and as such is protected under the
Constitution. Yet, at times, some reporters and photographers
cross the line and engage in conduct that is harmful and that
is not protected by the First Amendment. The working press has
no constitutional immunity from liability for conduct that is
likely to precipitate individual harm.
H.R 2448, the ``Protection From Personal Intrusion Act,''
was introduced by the late Congressman Sonny Bono on September
10, 1997. H.R. 2448 would make it a crime to persistently
physically follow or chase a person, where that person has a
reasonable expectation of privacy, in order to capture a visual
image, sound recording, or other physical impression of the
person. H.R. 3224, the ``Privacy Protection Act of 1998,'' was
introduced by Congressman Gallegly on February 12, 1998. It
seeks to criminalize similar conduct, but incorporates
refinements to the language of H.R. 2448: for example, H.R.
3224 requires that the person who is being pursued have a
reasonable fear that death or bodily injury will result from
the following or chasing. Neither bill would prohibit the
publication or broadcast of material obtained in this manner:
their restrictions are aimed at the egregious conduct of the
information gatherer, not the dissemination of the information.
Both H.R. 2448 and H.R. 3224 were carefully drafted to
regulate activity that is not protected by the First Amendment.
No reporter or photographer has a First Amendment right to
break the law under the guise of newsgathering. In Cohen v.
Cowles Media Co., 501 U. S. 663 (1991), the Supreme Court
discussed the intersection between First Amendment and similar
laws governing newsgathering activities:
[g]enerally applicable laws do not offend the First
Amendment simply because their enforcement against the
press has incidental effects on its ability to gather
and report the news. As the cases relied upon by the
respondents recognize, the truthful information sought
to be published must have been lawfully acquired. The
press may not with impunity break and enter an office
or dwelling to gather news. Neither does the First
Amendment relieve a newspaper reporter of the
obligation shared by all citizens to respond to a grand
jury subpoena and answer questions relevant to a
criminal investigation, even though the reporter might
be required to reveal a confidential source. The press,
like others interested in publishing, may not publish
copyrighted material without obeying the copyright
laws. Similarly, the media must obey the National Labor
Relations Act, and the Fair Labor Standards Act; may
not restrain trade in violation of the antitrust laws,
and must pay non-discriminatory taxes. It is,
therefore, beyond dispute that ``[t]he publisher of a
newspaper has no special immunity from the application
of general laws. He has no special privilege to invade
the rights and liberties of others.'' Accordingly,
enforcement of such general laws against the press is
not subject to stricter scrutiny than would be applied
to enforcement against other persons or organizations.
Id. at 669-670 (citations omitted).
Several states have existing laws which prohibit harassment
and enable individuals to obtain injunctive relief from
persistent press hounding. Theories of harassment can rise to
the level of intrusion and enable individuals to obtain
indirect protection for even public expectations of privacy.
For example, Jacqueline Kennedy Onassis obtained an injunction
against a free-lance celebrity photographer and self-described
``paparazzo.'' An injunction was also issued against reporters
who were gathering information for a story by engaging in
aggressive techniques such as following the plaintiffs children
to school, videotaping their home, and using a ``shotgun mike''
to record statements made within the privacy of their home.
Other common law and statutory remedies include shadowing
and stalking laws, although these generally apply to
surveillance activities of private investigators more than the
aggressive press intrusions that this legislation intends to
address. Assault and battery provisions are available for
particularly intrusive behavior, although this is not a widely
prosecuted offense for merely hounding public figures. Finally,
the press can be held liable for false imprisonment if the
targets of press activity are physically prevented from
carrying on their intended activity.
Proponents of these bills pointed out that although other
laws can be used when paparazzi engage in illegal conduct, this
would be the first statute specifically recognizing the broad
scope of the problem. These bills would provide a national
solution by establishing uniform standards to control the
abusive behavior. It should also be noted that these bills
would merely supplement, not preempt, any right or remedy
otherwise available under the law.
Hate Crimes Prevention Act of 1997--H.R. 3081
Summary.--H.R. 3081, The Hate Crimes Prevention Act of
1997, expands federal law so as to allow the federal government
authority to prosecute hates crimes that have traditionally
been the responsibility of state and local authorities. In
racial violence cases involving death or serious bodily injury,
the bill would eliminate the requirement in title 18, United
States Code, section 245 that the government prove that the
defendant injured or killed the victim because the victim was
engaging in a federally protected activity.
Title 18, United States Code, section 245, is one of the
primary statutes used to combat racial and religious violence.
At the time of its passage in 1968, the reach of the statute
was directed towards civil rights activities and required a
dual intent so that the universe of cases that fall within
federal jurisdiction would be limited to crimes committed
because the victim was engaged in certain federally protected
activities. To establish a violation of section 245(b)(2), a
federal prosecutor must prove that the defendant acted because
of the victim's race, color, religion or national origin and
because the victim was enjoying or exercising a federally
protected right. These federally protected rights are
specifically enumerated in section 245(b)(2) (A)-(F). Section
245 (b)(2) (A)-(F) provides: (A) enrolling in or attending any
public school or public college; (B) participating in or
enjoying any benefit, service, privilege, program, facility or
activity provided or administered by any State or subdivision
thereof; (C) applying for or enjoying employment, or any
perquisite thereof, by any private employer or any agency of
any State or subdivision thereof, or joining or using the
services or advantages of any labor organization, hiring hall,
or employment agency; (D) serving, or attending upon any court
of any State in connection with possible service, as a grand or
petit juror; (E) traveling in or using any facility of
interstate commerce, or using any vehicle, terminal, or
facility of any common carrier by motor, rail, water, or air;
(F) enjoying the goods, services, facilities, privileges,
advantages, or accommodations of any inn, hotel, motel, or
other establishment which provides lodging to transient guests,
or of any restaurant, cafeteria, lunchroom, lunch counter, soda
fountain, or other facility which serves the public and which
is principally engaged in selling food or beverages for
consumption on the premises, or of any gasoline station, or of
any motion picture house, theater, concert hall, sports arena,
stadium, or any other place of exhibition or entertainment
which serves the public, or of any other establishment which
serves the public and (i) which is located within the premises
of any of the aforesaid establishments or within the premises
of which is physically located any of the aforesaid
establishments, and (ii) which holds itself out as serving
patrons of such establishments. Section 245, which was title I
of the Civil Rights Act of 1968, was the antidote prescribed by
Congress to deter and punish those who would forcibly suppress
the free exercise of civil rights enumerated in that statute.
The Hate Crimes Prevention Act amends section 245 to allow
the federal government to take the lead in most, if not all,
cases that involve hate crimes. The definition of ``hate
crime'' in the Hate Crimes Sentencing Enhancement Act is
closely aligned to the definition contained in the Hate Crimes
Prevention Act of 1997. The term ``hate crime'' is ``a crime in
which the defendant intentionally selects a victim . . .
because of the actual or perceived race, color, religion,
national origin, ethnicity, gender, or sexual orientation of
any person.''
The bill contains a separate provision expanding the
definition of hate crimes to include crimes motivated by the
victim's sexual orientation, gender, or disability. However, in
order to establish a hate crime motivated by animus based on
the victim's sexual orientation, gender or disability, the
government would have to prove an interstate commerce
connection. There is no interstate commerce requirement for
acts of racial violence, but such a requirement would exist for
all other hate crimes.
Crimes motivated by the victim's sexual orientation have
become an alarming aspect of the American landscape. Testimony
was received from a witnesses who was mistaken by his assailant
for being gay and he testified that the assailant attacked and
beat him as he left his home. Some social scientists believe
individuals who commit acts of racial and religious violence
are frequently the same groups who are involved in violent
activity against gays and lesbians. For example, on January 4,
1996, Fred Mangione, was brutally murdered in Houston, Texas by
two Neo-Nazis who bragged about hating homosexuals. The
assailants belonged to a white supremacist group from Montana,
and had traveled to Houston. The victim was stabbed 35 times.
Although the FBI conducted a limited investigation of this
incident, the federal government was unable to prosecute the
murder, as federal law does not extend to crimes motivated by
animus based on the victim's sexual orientation. The local
authorities prosecuted these defendants. One was given a life
sentence and the other was given 10 years' probation.
In Oregon, two women were murdered in December, 1995, in
what local authorities have termed a hate crime. The victims
were lesbians who were active in a number of gay rights causes,
and the suspect expressed hatred for their lifestyle. Once
again, the federal government was unable to prosecute these
murders. The local authorities prosecuted this case and the
defendant received the death penalty.
The broad sweep of the statute raises concerns of whether
states and local jurisdictions will be able to take the lead in
combating hate crimes or will they be preempted by the federal
government. It has been argued that there are exceptional
circumstances when it is appropriate for the federal government
to get involved. For instance, organized hate groups, often
have sophisticated interstate networks, which could make it
more difficult for state and local law enforcement to prosecute
these cases. The FBI is uniquely positioned to investigate the
often complex interstate networks operated by organized hate
groups. But there would be a need for both the proper statutory
tools and additional funding for the FBI to perform its job
effectively.
On a state level, hate crimes committed on the basis of a
victim's gender are criminal in 19 states and the District of
Columbia; hate crimes committed on the basis of the victim's
sexual orientation are criminal in 20 states and the District
of Columbia; hate crimes committed on the basis of a victim's
disability or handicap are criminal in 21 states and the
District of Columbia. Wyoming does not have any hate crime
laws. Forty states and the District of Columbia have penalty
enhancement hate crime statutes.
Hate crimes often involve multiple offenders and multiple
incidents. Some states have very restrictive rules pertaining
to joinder of defendants, which make it difficult to try
defendants together. For example, in Lubbock, Texas, (United
States v. Mungia et. al.) three racists attempted to start a
race war in October, 1994, by shooting three African American
victims in three separate incidents within 30 minutes. Under
Texas law, the three defendants would have been entitled to
separate trials if the matter had proceeded in state court. It
was also conceivable that each defendant would have been
entitled to a separate trial on each incident. This means that
there would have been a minimum of three trials, and possibly
as many as nine trials, if the matter had proceeded in state
court. These separate trials would have placed an enormous
burden on the victims' families, and the investigating
authorities. In addition, under Texas law, the defendants would
have been eligible for parole perhaps as early as 20 years
later, whereas federal law provides a mandatory life sentence.
As a result, the local prosecuting authorities worked in
tandem with federal authorities, and the joint decision was
made to prosecute the case in federal court, where one trial
was held resulting in the defendants' convictions. This case
illustrates that hate crimes are neither exclusively a state
and local problem, nor exclusively a federal problem. This bill
would give a new prosecutorial tool to the entire team.
Specifically, hate crimes prosecution under this law must
be approved by the Attorney General or another high ranking
Justice Department official, not just by local federal
prosecutors. This requirement is already in place in current
law. It is expected that this requirement would serve to
limited the number of prosecutions.
Critics of the bill ask whether the bill is
unconstitutional and opine that the bill will not pass the test
set out in United States v. Lopez, 514 U.S. 549 (1995). In
Lopez, the Supreme Court held the Gun-Free School Zones Act of
1990 unconstitutional because it did not fall within any of
Congress' legislative powers enumerated in Article I. Chief
Justice Rehnquist, writing for the majority, found that the
government claim of a substantial effect on interstate commerce
of guns near schools was not supported by congressional
findings. Some scholars believe this bill, like the Act in
Lopez, regulates intrastate non-economic activities and that
the bill will meet the same fate as the Act in Lopez. It is
also unclear how prosecutors and courts would determine that an
act of violence was committed because of an individual's gender
or disability. Others suggest the bill covers crimes already
covered at the state level and fills no gaps in criminal law.
They reject the need for an expanded federal jurisdiction for
hate crimes. The bill presents a long term systemic cost to the
federal court that may preempt the federal judiciary's core
responsibility--cases that traditionally are reserved for
federal court.
Legislative History.--Although the bill was referred to the
Subcommittee on Crime, on July 22, 1998, the Full Committee
held a hearing on H.R. 3081, the ``Hate Crimes Prevention Act
of 1997.'' The witnesses were: Acting Assistant Attorney
General of the Civil Rights Division, Bill Lann Lee, United
States Department of Justice--Washington, D.C. Professor Cass
Sunstein, University of Chicago Law School, Professor John
Harrison, University of Virginia Law School, Mark Bangerter,
Boise, Idaho, Richard A. Devine, State Attorney for Cook
County, Illinois, Professor Jack McDevitt, Northeastern
University, Kimberly Potter, Senior Research Fellow, Center for
Crime and Justice, New York University Law School.
Title 36 Codification--H.R. 1085 (Public Law 105-225)
On March 17, 1997, Chairman Hyde introduced H.R. 1085, a
bill to revise, codify, and enact without substantive change
certain general and permanent laws, related to patriotic and
national observances, ceremonies, and organizations, as title
36, United States Code. H.R. 1085 was drafted by the Office of
the Law Revision Counsel under its statutory authority to
submit to the Committee on the Judiciary bills to enact the
titles of the United States Code into positive law. At a markup
in the full Committee on October 7, 1997, H.R. 1085, as
amended, was approved by a voice vote and ordered reported. The
Committee on the Judiciary formally reported the legislation
favorably to the House (H. Rept. 105-326) on October 21, 1997.
Under suspension of the rules, the House passed H.R. 1085, as
amended, on February 3, 1998. The Senate passed the legislation
on July 30, 1998, and the President approved it (Public Law
105-225) on August 12, 1998.
Title 36 Codification Update--S. 2524 (Public Law 105-354)
On September 28, 1998, Senator Hatch introduced S. 2524, a
bill to codify without substantive change laws related to
patriotic and national observances, ceremonies, and
organizations and to improve the United States Code. (The text
of the bill was identical to H.R. 4529, introduced by Chairman
Hyde on September 9, 1998.) This legislation, drafted by the
Office of the Law Revision Counsel, updated the recently
enacted (Public Law 105-225) codification of Title 36 and
incorporated technical corrections. The Senate Committee on the
Judiciary, on October 1, 1998, reported the legislation
favorably to the Senate--which in turn passed it on October 8,
1998. In the House, the Senate passed legislation was referred
to the Committee on the Judiciary and held at the full
Committee. On October 12, 1998, the Committee on the Judiciary
was discharged from further consideration and the legislation
passed the House under suspension of the rules. The President
approved it on November 3, 1998 (Public Law 105-354).
Title 49 Codification Update--H.R. 1086 (Public Law 105-102)
On March 17, 1997, Chairman Hyde introduced H.R. 1086, a
bill to codify without substantive change laws related to
transportation and to improve the United States Code. H.R. 1086
was drafted by the Office of the Law Revision Counsel under its
statutory authority to submit periodically revisions of
positive law titles of the Code to keep those titles current.
The legislation updated title 49 to incorporate a law related
to transportation that was not already included in the
codification and made technical corrections. At a markup on
June 18, 1997, the full Committee ordered H.R. 1086, as
amended, favorably reported to the House. The Committee on the
Judiciary formally reported the legislation (H. Rept. 105-153)
on June 25, 1997. Under suspension of the rules, H.R. 1086, as
amended, passed the House on July 8, 1997. The legislation
passed the Senate on November 8, 1997 and was approved by the
President (Public Law 105-102) on November 20, 1997.
Assassination Records Review Board Authorization Extension--H.R. 1553
(Public Law 105-25)
On May 8, 1997, Representative Burton of Indiana introduced
H.R. 1553, a bill to amend the President John F. Kennedy
Assassination Records Collection Act of 1992 to extend the
authorization of the Assassination Records Review Board until
September 30, 1998. On June 19, 1997, the legislation was
reported favorably to the House (Rept. 105-138, Part 1) by the
Committee on Government Reform and Oversight. The Committee on
the Judiciary--which had held the bill at the full Committee--
was discharged from further consideration on June 20, 1997.
Under suspension of the rules, the House passed the legislation
on June 23, 1997. The Senate passed it on June 25, 1997, and
the President approved it (Public Law 105-25) on July 3, 1997.
Airline Service Improvement Act of 1998--H.R. 2748
On October 28, 1997, Representative Duncan introduced H.R.
2748, a bill to amend title 49, United States Code, to provide
assistance and slots with respect to air carrier service
between high density airports and airports not receiving
sufficient service, to improve jet aircraft service to
underserved markets, and for other purposes. The Committee on
Transportation and Infrastructure, on October 15, 1998,
favorably reported the bill as amended to the House (H. Rept.
105-822, Part 1). The legislation was sequentially referred to
the Committee on the Judiciary until October 16, 1998--with the
period subsequently extended until October 20, 1998 and then
until October 21, 1998. No further action was taken on H.R.
2748 during the 105th Congress.
Campaign Reform and Election Integrity Act of 1998--H.R. 3485
On March 18, 1998, Representative Thomas introduced H.R.
3485, legislation to amend the Federal Election Campaign Act of
1971 to reform financing of campaigns for election for federal
office and for other purposes. The Committee on House
Oversight, on March 23, 1998, favorably reported the bill as
amended to the House (H. Rept. 105-457, Part 1). That same day,
the Committee on the Judiciary and the Committee on Ways and
Means received sequential referrals and were discharged from
further consideration of the legislation. Although the House
took no further action on H.R. 3485, the House--on March 30,
1998--did consider and failed to pass under suspension of the
rules a related but not identical bill, H.R. 3581, introduced
that day by Representative Thomas.
The Intelligence Community Whistleblower Protection Act of 1998--H.R.
3829
On May 12, 1998, Representative Goss introduced H.R. 3829,
a bill to amend the Central Intelligence Agency Act of 1949 to
provide a process for agency employees to submit urgent
concerns to Congress, and for other purposes. The Permanent
Select Committee on Intelligence, on September 25, 1998,
reported the legislation as amended favorably to the House (H.
Rept. 105-747, Part 1). The Committee on the Judiciary--and
other committees to which the legislation was referred--were
discharged from further consideration on October 20, 1998. No
further action on H.R. 3829 was taken in the 105th Congress.
Money Laundering Deterrence Act of 1998--H.R. 4005
On June 5, 1998, Representative Leach introduced H.R. 4005,
a bill to amend title 31 of the United States Code to improve
methods for preventing financial crimes, and for other
purposes. The Committee on Banking and Financial Services, on
July 8, 1998, favorably reported the bill as amended to the
House. On July 31, 1998, the Committee on the Judiciary--which
had received a sequential referral--was discharged from further
consideration. On September 11, 1998, the Committee on Ways and
Means also was discharged. By a letter dated September 28,
1998, Chairman Hyde of the Committee on the Judiciary wrote to
Chairman Leach of the Committee on Banking and Financial
Services requesting that the section entitled ``Fungible
Property in Bank Accounts'' be removed before floor
consideration, pointing out: ``As the House Leadership wants to
delay consideration of reforms to our federal civil asset
forfeiture laws until the 106th Congress, it would be more
appropriate for this provision to be considered at that time.''
Congressional Record, October 5, 1998, at H9477. Chairman Leach
responded by letter dated October 1, 1998 that ``[i]n deference
to your concerns--and to the House leadership's view that
further consideration of civil asset forfeiture reforms should
await the next Congress--this provision will be removed from
the bill reported by the Banking Committee on July 8, 1998.''
Id. During floor consideration on October 5, 1998, the House
passed the bill in revised form under suspension of the rules--
with the bill's title changed to reflect the fact that title
18, United States Code, also was being amended. The Senate,
however, did not act on H.R. 4005 during the 105th Congress.
Financial Information Privacy Act of 1998--H.R. 4321
On July 23, 1998, Representative Leach introduced H.R.
4321, a bill to protect consumers and financial institutions by
preventing personal financial information from being obtained
from financial institutions under false pretenses. The
Committee on Banking and Financial Services, on August 21,
1998, favorably reported the bill as amended to the House (H.
Rept. 105-701, Part 1). The legislation was sequentially
referred to the Committee on the Judiciary and to the Committee
on Commerce. On September 25, 1998, the Committee on Commerce
favorably reported the bill, as amended (H. Rept. 105-701, Part
2), and the Committee on the Judiciary was discharged from
further consideration of the legislation. No further action on
H.R. 4321 was taken in the 105th Congress.
Sense of the Congress Relating to an Award of Attorneys' Fees, Costs,
and Sanctions--H.J. Res. 107
On February 3, 1998, Representative Hayworth introduced
H.J. Res. 107 expressing the sense of the Congress that the
award of attorneys' fees, costs, and sanctions of $285,864.78
ordered by United States District Judge Royce C. Lamberth on
December 18, 1997, should not be paid with taxpayer funds. (The
resolution included a finding that ``American taxpayers should
not be held responsible for the inappropriate conduct of
Federal Government officials and lawyers involved with the
[President's] Task Force [on National Health Care Reform].'')
On the same day, the Committee on Rules reported a rule for
Floor consideration of H.J. Res. 107. The following day the
Committee on the Judiciary was discharged from further
consideration of the joint resolution and the joint resolution
passed the House by a recorded vote of 273 yeas to 126 nays.
The resolution was referred to the Senate Committee on the
Judiciary, but the Senate took no action during the 105th
Congress.
Criminal Charges for Failure to Comply with a Valid Subpoena--H. Res.
244
On September 25, 1997, Representative Thomas submitted H.
Res. 244 demanding that the Office of the United States
Attorney for the Central District of California file criminal
charges against Hermandad Mexicana Nacional for failure to
comply with a valid subpoena under the Federal Contested
Elections Act. The resolution noted that ``the United States
Attorney's failure to enforce criminal penalties for violation
of the [Federal Contested Elections] Act encourages disrespect
for the law and hinders the Constitutionally mandated process
of determining the facts in the contested election case [of
Dornan v. Sanchez pending before the Committee on House
Oversight], including the discovery of any election fraud that
may have influenced the outcome of the election.'' The
Committee on Rules, on September 29, 1997, reported a rule
providing for Floor consideration of the resolution. The
following day the Committee on House Oversight and the
Committee on the Judiciary--to which the resolution had been
referred--were discharged from further consideration. On
October 1 (legislative day of September 30), 1997, the House by
a recorded vote of 219 yeas to 203 nays (with one member
answering ``present'') agreed to the resolution as amended.
President's Assertions of Executive Privilege--H. Res. 432
On May 14, 1998, Representative DeLay submitted H. Res. 432
expressing the sense of the House of Representatives concerning
the President's assertions of executive privilege. The
resolution expressed the sense of the House that ``all records
or documents (including legal memoranda, briefs, and motions)
relating to any claims of executive privilege asserted by the
President should be immediately made publicly available.'' That
same day the Committee on Rules reported a rule providing for
Floor consideration of this resolution and H. Res. 433 (H.
Rept. 105-536). On May 21, 1998, the Committee on the
Judiciary--to which H. Res. 432 had been referred--was
discharged from further consideration, and the House by a
recorded vote of 259 yeas to 157 nays (with six Members
answering ``present'') agreed to the resolution.
Urging Full Cooperation with Congressional Investigations--H. Res. 433
On May 14, 1998, Representative Solomon submitted a
resolution calling upon the President of the United States to
urge full cooperation by his former political appointees and
friends and their associates with congressional investigations.
The resolution noted that ``approximately 90 witnesses in the
campaign finance investigation have either asserted a fifth
amendment privilege or fled the country to avoid testifying in
congressional investigations.'' On the same day the resolution
was submitted, the Committee on Rules reported a rule providing
for floor consideration of both H. Res. 432 and H. Res. 433 (H.
Rept. 105-536). On May 21, 1998, the Committee on the
Judiciary--to which H. Res. 433 had been referred--was
discharged from further consideration, and the House by a vote
of 342 yeas to 69 nays (with 12 members answering ``present'')
agreed to the resolution.
Condemning the Brutal Killing of Mr. James Byrd, Jr.--H. Res. 466
On June 11, 1998, Representative Waters submitted H. Res.
466 condemning the brutal killing of Mr. James Byrd, Jr. The
resolution stated in findings that ``[t]his was not a random
act of violence, but a senseless, hate-filled crime.'' Also on
June 11th , the Committee on the Judiciary--to which the
resolution had been referred--was discharged from further
consideration, and the House--by a vote of 397 yeas to 0 nays--
agreed to the resolution.
Impeachment Resolution Directed at Independent Counsel Kenneth W.
Starr--H. Res. 545
On September 18, 1998, Representative Hastings of Florida
submitted H. Res. 545 to impeach independent counsel Kenneth W.
Starr. On September 23, 1998, the Committee on the Judiciary
(to which the resolution had been referred) was discharged from
further consideration, and the House--considering the
resolution as a privileged matter--agreed to a motion to table
by a vote of 340 yeas to 71 nays.
Condemning the Brutal Killing of Mr. Matthew Shepard--H. Res. 597
On October 14, 1998, Representative Cubin submitted H. Res.
597 condemning the brutal killing of Mr. Matthew Shepard, a
student at the University of Wyoming, and pledging ``to do
everything in its [the House's] power to fight the sort of
prejudice and intolerance that leads to the murder of innocent
people.'' On October 15, 1998, the Committee on the Judiciary--
to which the resolution had been referred--was discharged from
further consideration and the House, under suspension of the
rules, agreed to the resolution.
Nazi War Crimes Disclosure Act--S. 1379 (Public Law 105-246)
On November 5, 1997, Senator DeWine introduced S. 1379, a
bill to amend section 552 of title 5, United States Code, and
the National Security Act of 1947 to require disclosure under
the Freedom of Information Act regarding certain persons,
disclose Nazi war criminal records without impairing any
investigation or prosecution conducted by the Department of
Justice or certain intelligence matters, and for other
purposes. The Senate Committee on the Judiciary, on March 5,
1998, reported the bill with an amendment. On June 19, 1998,
the Senate passed the bill as amended in Committee and on the
Floor. After being held at the desk in the House, the
legislation passed the House on August 6, 1998. The President
approved it on October 8, 1998 (Public Law 105-246).
Authorization for Acceptance of Voluntary Services by the
Administrative Assistant to the Chief Justice--S. 2143 (Public
Law 105-233)
On June 9, 1998, Senator Hatch introduced S. 2143, a bill
to amend chapter 45 of title 28, United States Code, to
authorize the Administrative Assistant to the Chief Justice to
accept voluntary services, and for other purposes. The Senate
Committee on the Judiciary, on July 9, 1998, reported the
legislation favorably to the Senate with an amendment. The bill
as amended passed the Senate on July 16, 1998. After being held
at the desk in the House, the legislation passed the House
under suspension of the rules on August 3, 1998. The President
approved it on August 13, 1998 (Public Law 105-233).
Oversight Activities
Pursuant to Rule X, clause 2(d), the Committee adopted an
oversight plan for the 105th Congress. The oversight plan
incorporated the matters which the Committee deemed, at the
beginning of the Congress, to be worthy of its attention. Some
of the matters contained in the oversight plan were addressed
in the context of legislative hearings. The following is a list
of the oversight hearings held by the full Committee. The
oversight activities of the subcommittees will be discussed
separately.
Full Committee Oversight Hearings
Implementation of the ``Church Arson Prevention Act of 1996''
(Public Law 104-105), March 19, 1997 (Serial No. 4).
Product Liability Reform, April 10, 1997. (Serial No. 10).
Grassroots Solutions to Youth Crime, May 7, 1997 (Serial No.
18).
Antitrust Aspects of Electricity Deregulation, June 4, 1997
(Serial No. 19).
State of Competition in the Cable Television Industry,
September 24, 1997 (Serial No. 41).
Seeking Results from the Department of Justice, September 30,
1997 (Serial No. 40).
United States Department of Justice, October 15, 1997 (Serial
No. 61).
Application of the Antitrust Laws to the Tennessee Valley
Authority and the Federal Power Marketing
Administrations, October 22, 1997 (Serial No. 51).
Antitrust Enforcement Agencies: the Antitrust Division of the
Department of Justice and the Bureau of Competition of
the Federal Trade Commission, November 5, 1997 (Serial
No. 57).
Civil Liability Portions of the Proposed Tobacco Settlement,
February 5, 1998.
State of Competition in the Airline Industry, May 19, 1998.
Effects of Consolidation on the State of Competition in the
Financial Services Industry, June 3, 1998.
Effects of Consolidation on the State of Competition in the
Telecommunications Industry, June 24, 1998.
Consequences of Perjury and Related Crimes, December 1, 1998.
SUBCOMMITTEE ON CRIME
BILL McCOLLUM, Florida, Chairman
CHARLES E. SCHUMER, New York STEVEN SCHIFF, New Mexico \1\
SHEILA JACKSON LEE, Texas STEPHEN E. BUYER, Indiana
MARTIN T. MEEHAN, Massachusetts STEVE CHABOT, Ohio
ROBERT WEXLER, Florida BOB BARR, Georgia
STEVEN R. ROTHMAN, New Jersey ASA HUTCHINSON, Arkansas
GEORGE W. GEKAS, Pennsylvania
HOWARD COBLE, North Carolina
LINDSEY O. GRAHAM, South Carolina
\2\
----------
\1\ Steven Schiff, New Mexico, deceased March 25, 1998.
\2\ Lindsey O. Graham, South Carolina, assigned March 3, 1998, to
fill the vacancy resulting from the illness of Steven Schiff, New
Mexico.
Tabulation of subcommittee legislation and activity
Legislation referred to the Subcommittee.......................... 308
Legislation reported favorably to the full Committee.............. 24
Legislation reported adversely to the full Committee.............. 0
Legislation reported without recommendation to the full Committee. 0
Legislation reported as original measure to the full Committee.... 3
Legislation discharged from the Subcommittee...................... 4
Legislation pending before the full Committee..................... 2
Legislation reported to the House................................. 29
Legislation discharged from the Committee......................... 21
Legislation pending in the House.................................. 2
Legislation passed by the House................................... 39
Legislation pending in the Senate................................. 18
Legislation vetoed by the President............................... 0
Legislation enacted into public law............................... 14
Legislation on which hearings were held........................... 24
Days of hearings (legislative and oversight)...................... 32
Jurisdiction of the Subcommittee
The Subcommittee on Crime has jurisdiction over the Federal
Criminal Code, drug enforcement, sentencing, parole and
pardons, Federal Rules of Criminal Procedure, prisons, the
Independent Counsel Act, law enforcement assistance to State
and local governments, and other appropriate matters as
referred by the Chairman, and relevant oversight.
Highlights of the Subcommittee's activities during the
105th Congress include the following:
JUVENILE CRIME
The Juvenile Accountability Block Grants Act of 1997
On January 7, 1997, Chairman McCollum introduced H.R. 3,
the ``Juvenile Crime Control Act of 1997.'' H.R. 3 evolved from
a bill considered in the 104th Congress, H.R. 3565, the
``Violent Youth Predator Act of 1996.'' Several field hearings
were held in the 104th Congress to examine the current and
future magnitude of violent youth crime, and much needed
juvenile justice reforms. In particular, the forums were
designed to determine how Congress might help states and
localities as they respond to the crisis of youth crime. Law
enforcement leaders from all fifty states were invited to
participate in the regional forums in their area. H.R. 3565 was
marked up in the full Judiciary Committee on July 16, 1996, but
the bill was not reported out of the full Committee in the
104th Congress.
Throughout the United States today, state and local
juvenile justice systems are failing to hold juvenile offenders
accountable for their wrongdoing. The statistics describe a
juvenile justice system in collapse. Only 10 percent of violent
juvenile offenders--those who commit murder, rape, robbery, and
assault--receive any sort of secure confinement. Many juveniles
receive no sentence at all: Nearly 40 percent of violent
juvenile offenders who come into contact with the justice
system have their cases dismissed. By the time the courts
finally lock up an older teenager on a violent crime charge,
the offender often has a long rap sheet with arrests starting
in the early teens. According to the Justice Department, 43
percent of juveniles in state institutions had more than five
prior arrests, and 20 percent had been arrested more than 10
times. Approximately four-fifths of these offenders had
previously been on probation, and three-fifths had been
committed to a correctional facility at least once in the past.
The average length of institutionalization for a juvenile
who has committed a violent crime is only 353 days. Nationally,
according to the FBI, if trends continue as they have over the
past 10 years, juvenile arrests for violent crime will more
than double by the year 2010. The FBI predicts that juveniles
arrested for murder will increase 145 percent; forcible rape
arrests will increase 66 percent; and aggravated assault
arrests will increase 129 percent. In the final years of this
decade and throughout the next, America will experience a
population surge made up of the children of today's aging baby
boomers. Today's enormous cohort of 5-year-olds will be
tomorrow's teenagers. This is ominous news, given that more
violent crime is committed by older juveniles than by any other
age group. At the same time, youth drug use is rising rapidly.
The confluence of these trends portends the possibility of an
unprecedented period of violent youth crime.
The introduction of H.R. 3, the ``Juvenile Crime Control
Act of 1997,'' was an effort by Chairman McCollum to continue
to promote juvenile justice reform in the 105th Congress. The
bill strengthens the outdated federal juvenile justice system
and provides assistance to states and localities to restore
accountability to their juvenile justice systems. The bill does
so by reforming and strengthening the federal juvenile justice
system, with the aim of providing a model federal system for
the states. The bill also establishes a grant program for
states and localities for the purpose of promoting greater
accountability in their juvenile justice systems. The grant
program, which allows jurisdictions to decide how best to use
their funds to fight juvenile crime, encourages prosecution of
serious violent offenses by juveniles as adults, meaningful
sanctions for every act of delinquency, and reform of juvenile
records to improve quality and accessibility.
On January 28, 1997, H.R. 3 was referred to the
Subcommittee on Crime. On February 26, 1997, the Subcommittee
held a joint hearing with the Subcommittee on Early Childhood,
Youth and Families of the Committee on Education and the
Workforce on the Administration's anti-gang and youth violence
initiative. The Subcommittee heard testimony from only one
witness, Attorney General Janet Reno.
On March 20, 1997, the Subcommittee held a hearing on
Reforming Juvenile Justice in America. The Subcommittee heard
testimony from the Honorable Patricia West, Secretary of Public
Safety, Commonwealth of Virginia; Chief David Walchak, Chief of
Police, Concord, New Hampshire and Past President,
International Association of Chiefs of Police; Judge David
Grossman, Hamilton County Juvenile Court, Cincinnati, Ohio and
Past President, National Council of Juvenile and Family Court
Judges; Barbara O'Connor, Federal Public Defender, Los Angles,
California, Special Counsel, U.S. Sentencing Commission; Eric
Joy, Director, Allegheny County Juvenile Court; Sergeant Roger
Redd, Director, Cumberland County Physical Training Program and
Bailiff, Cumberland County Sheriff's Office; Reverend Eugene
Rivers, Director, Ten Point Leadership Program; Peter Jackson,
Director, Alliance of Concerned Men of Washington, D.C. and
Deputy Warden, Lorton Youth Center; Richard Green, Director,
Crown Heights Youth Collective, Inc.
On April 22, 1997, the Subcommittee on Crime was discharged
from further consideration. On April 24, 1997, and April 29,
1997, the full Committee met in open session to consider the
bill. On April 29, 1997, the Committee ordered the bill
favorably reported to the House, amended, by a vote of 15 yeas
to 9 nays. H.R. 3 was reported favorably to the House, (H.
Rept. 105-86). On May 8, 1997, the House passed H.R. 3, the
``Juvenile Crime Control Act of 1997,'' by a vote of 286 ayes
to 132 nays. Title III of H.R. 3, The ``Juvenile Accountability
Block Grants'' portion of the bill was amended and incorporated
in the Commerce, Justice, State and the Judiciary
Appropriations Act for fiscal year 1998, which was signed into
law on November 26, 1997, (Public Law 105-119). Similar
language was also included in the Omnibus Consolidated and
Emergency Supplemental Appropriations Act for fiscal year 1999
(H. Rept. 105-825, Public Law 105-277).
On September 15, 1998, the House passed S. 2073, a bill to
authorize appropriations for the National Center for Missing
and Exploited Children, (with an amendment including the
language of H.R. 3) under suspension of the rules by a vote of
280 yeas to 126 nays. On October 1, 1998, the House agreed to a
motion to insist on amendments and request a conference. No
further action was taken on S. 2073 or H.R. 3 in the 105th
Congress.
Community Police Officers in Schools
S. 2235, to amend part Q of the Omnibus Crime Control and
Safe Streets Act of 1968 (Public Law 103-322) to encourage the
use of school resource officers, was passed by the Senate on
October 7, 1998. The bill allows police officers from the 1994
Crime bill's ``100,000 COPS on the Beat'' program to be used in
schools. Several random school-related shootings occurred in
1997 and 1998, evoking public shock and outrage. These
shootings resulted in numerous deaths and serve as sobering and
tragic examples of just how urgent the need to address youth
crime has become. A look at crime statistics show that while
murder rates for young people may have declined during the
105th Congress, the schoolyard murder rate almost doubled in 2
years. Twenty-five students were killed in U.S. schools in
1998.
On October 8, 1998, S. 2235 was referred to the House
Committee on the Judiciary, in addition to the Committee on
Education and the Workforce, for the consideration of such
provisions as fall within the jurisdiction of the committee
concerned. On October 8, 1998, the Judiciary Committee and the
Committee on Education and the Workforce were discharged from
further consideration. On October 9, 1998, S. 2235 passed the
House under suspension of the rules and the bill was signed by
the President on October 27, 1998 (Public Law 105-302).
Establishment of 2,500 Boys and Girls Clubs of America by the year 2000
H.R. 1753 amends a provision enacted as part of the
``Economic Espionage Act of 1996,'' (Public Law 104-294), which
authorized $100 million in federal seed money over 5 years to
establish an additional 1,000 Boys and Girls Clubs in public
housing and distressed areas throughout the country. As of
1996, there were 1,800 Boys and Girls Clubs facilities in the
United States. H.R. 1753 makes several administrative changes
to current law, streamlining the application process for the
clubs and ensuring that at least 2,500 facilities are
established by the year 2000.
On October 9, 1997, the Subcommittee met in open session
and considered the bill H.R. 1753, to establish 2,500 Boys and
Girls Clubs of America by the year 2000. The bill was ordered
reported favorably to the full Committee. On October 29, 1997,
the full Committee considered H.R. 1753 and the bill was
ordered reported favorably to the House, amended (H. Rept. 105-
368). On November 13, 1998, H.R. 1753 was passed by the House,
as amended, under suspension of the rules. On November 13,
1998, the Senate companion of H.R. 1753, S. 476 passed the
House with an amendment substituting the language of H.R. 1753
as passed by the House. S. 476 was signed into law on December
2, 1997 (Public Law 105-133).
National Youth Crime Prevention Demonstration Act
On March 31, 1998, Mr. Conyers introduced H.R. 3607, the
``National Youth Crime Prevention Demonstration Act.'' H.R.
3607 provides grants to grassroots organizations in certain
cities to develop youth intervention models. The bill was
referred the Committee on the Judiciary and the Committee on
the Education and the Workforce. On April 15, 1998, the bill
was referred to the Subcommittee on Crime. On July 31, 1998,
the Subcommittee on Crime was discharged from further
consideration. On August 5, 1998, the full Committee met in
open session and considered H.R. 3607. The bill was ordered
reported favorably to the House, amended. No further action was
taken on H.R. 3607 in the 105th Congress.
Juvenile Rape in Prison Protection Act of 1997
On June 16, 1997, Ms. Jackson Lee introduced H.R. 1898, the
``Juvenile Rape in Prison Protection Act of 1997.'' H.R. 1898
would amend section 2241(a) of title 18 of the United States
Code so as to establish mandatory life imprisonment for anyone
21 years of age or older who comments the federal offense of
aggravated sexual abuse in violation of section 2241(a) of
title 18 of the Unites States Code, where the victim is a
Federal prisoner who has not attained the age of 18 years.
On June 18, 1997, the Subcommittee on Crime was discharged
from further consideration and H.R. 1898 was ordered reported
to the House by the full Committee. H.R. 1898 was reported to
the House on June 26, 1997 (H. Rept. 105-159). No further
action was taken on H.R. 1898 in the 105th Congress.
PROTECTING OUR CHILDREN
The Jacob Wetterling Improvements Act
On May 20, 1997, Chairman McCollum introduced H.R. 1683,
the ``Jacob Wetterling Crimes Against Children and Sexually
Violent Offender Registration Improvements Act of 1997.'' H.R.
1683 strengthens state Megan's law programs and closes several
loopholes which allow convicted sex offenders to avoid
registering their whereabouts with local law enforcement.
Congress has made several efforts to encourage States to
establish a system which requires persons who commit sexual or
kidnaping crimes against children or who commit sexually
violent crimes against any person (adult or child) to register
their address and other pertinent information with state law
enforcement upon release from prison. The Jacob Wetterling Act,
which passed in the 1994 Crime Bill was the first of such
legislation (Public Law 103-322). In 1996, Congress amended the
Wetterling Act in ``Megan's Law'' (Public Law 104-145) which
requires states to notify the public when sexually violent
offenders move into their communities. Also in 1996, Congress
passed the ``Pam Lychner National Sexual Offender Tracking and
Identification Act,'' which was designed to ensure the
nationwide availability of sex offender registration
information to law enforcement (Public Law 104-236). H.R. 1683,
the ``Jacob Wetterling Improvements Act'' was designed to amend
previous efforts regarding sex offender registries to require
federal and military offenders to participate in the program,
as well as provide States with more flexibility as they
implemented their own systems. While no hearings were held on
the bill, formal and informal input was received from the
Department of Justice and from several State and local
government officials, law enforcement officers and criminal
history repository directors.
On June 12, 1997, the Subcommittee on Crime considered H.R.
1683, and the bill was ordered reported favorably to the full
Committee. On September 9, 1997, the full Committee ordered the
bill reported favorably to the House, amended, (H. Rept. 105-
256). On September 23, 1997, the bill passed the House, as
amended, under suspension of the rules, by a vote of 415 yeas,
2 nays, and 1 voting ``present.'' The text of H.R. 1683 was
incorporated into the Commerce, Justice, State and the
Judiciary Appropriations Act for fiscal year 1998, which was
signed on November 26, 1997 (Public Law 105-119).
The Child Protection and Sexual Predator Punishment Act of 1998
During the 104th and 105th Congresses, the Subcommittee on
Crime held a total of seven hearings on issues related to
crimes against children. At those hearings, the Subcommittee
heard testimony from victim parents, child safety advocacy
groups, and federal, state and local law enforcement about the
nature, threat and best ways to stop pedophiles who prey on
innocent children.
While there are currently no estimates as to the number of
children victimized via cyberspace, the rate at which federal,
state, and local law enforcement are confronted with these
types of cases is growing rapidly. As we usher in the computer
age, law enforcement will be confronted with even newer
challenges. ``Cyber-predators'' often ``cruise'' the Internet
in search of lonely, rebellious or trusting young people.
Pedophiles can easily find children through on-line ``chat
rooms'' and ``bulletin boards'' designed for and frequented by
children. These on-line forums allow computer users to exchange
typed messages about a particular subject and to engage in
conversations with like-minded souls, often perfect strangers.
In this environment, a middle-aged man could actually be
masquerading as a 12-year-old girl. Clever pedophiles manage to
befriend and gain the trust of youngsters who may eventually
agree to a face-to-face meeting. In recent cases, youths who
have agreed to such meetings have been photographed for child
pornography, raped, beaten, robbed, and kidnaped.
Several well-publicized tragedies occurred around the
nation during the 105th Congress which led to the hearings held
by the Subcommittee on Crime: In New Jersey, a 15-year-old
teenager accused of sexually assaulting and murdering an 11-
year-old boy was discovered to be himself a victim of sexual
assault by a 43-year-old-man he met in an America On Line chat
room. In Maryland, a computer consultant was convicted in
federal court of two counts of crossing state lines to engage
in sex with a minor. The man had used the Internet to contact
over 100 girls and had arranged to meet a 12-year-old girl at
the Burke, Virginia, public library when he was caught. A
missing 12-year-old, Palm Springs, California, boy was found in
the home of a Fairfax, Virginia, man with whom he had
communicated via telephone and the Internet. The boy was
apparently persuaded by the Fairfax man to take a bus to
Virginia. There, the boy was sexually abused for several weeks
before he was located by authorities.
During the 105th Congress, the Subcommittee on Crime held 2
days of hearings on issues related to H.R. 3494 on November 7,
1997, and April 30, 1998. At the November 7, 1997, hearing,
witnesses invited by the Subcommittee were members of law
enforcement who had worked cases involving Internet crimes
against children on a day-to-day basis, or they were
individuals who had worked with children and families to
promote on-line safety on the Internet. They included: Steven
Wiley, Section Chief, Violent Crimes Unit, Federal Bureau of
Investigation; Carol Ellison, senior editor, HomePC Magazine;
D. Douglas Rehman, Special Agent, Florida Department of Law
Enforcement; Cathy Cleaver, Legal Counsel, Family Research
Council; and Paul Reid, Detective, Arlington County Police
Department.
On March 18, 1998, Chairman McCollum introduced H.R. 3494,
the ``Child Protection and Sexual Predator Punishment Act of
1998.'' The bill is a comprehensive package of new crimes and
increased penalties developed in response to assaults on
children, particularly those facilitated by computers. The bill
toughens penalties for pedophiles who stalk children on the
Internet and provides law enforcement with tools to track down
kidnappers, child pornographers and serial killers. As
introduced, the bill prohibits contacting a minor over the
Internet for the purposes of engaging in illegal sexual
activity and prohibits knowingly transferring obscene materials
to a minor over the Internet. H.R. 3494 also prohibits the use
of interstate facilities to transmit identifying information
about a minor for criminal sexual purposes. Moreover, the bill,
as introduced, establishes a minimum sentence of 3 years for
using a computer to coerce or entice a minor to engage in
illegal sexual activity.
H.R. 3494 targets pedophiles who use and distribute child
pornography to lure children into sexual encounters. The bill
increases penalties for possessing 50 or more images of or
items containing child pornography and broadens the scope of
current law relating to the coercion of a minor to travel in
interstate commerce to engage in sexual activity to include the
``production of child pornography.'' In addition, the bill
permits the forfeiture of assets utilized to distribute or
possess ``morphed'' child pornography. H.R. 3494 also
authorizes pretrial detention of federal child sex offenders
and allows for criminal forfeiture for certain federal sex
offenses.
As introduced, H.R. 3494 also mandates life in prison for
serial rapists--those who commit federal sexual assaults and
have been convicted twice previously of serious state or
federal sex crimes. The bill increases the maximum prison
sentence from 10 to 15 years for transporting a minor in
interstate commerce for prostitution or sexual activity, and
requires the U.S. Sentencing Commission to review and amend the
sentencing guidelines to increase the penalties for certain
federal sex offenses against minors. H.R. 3494 also doubles
prison sentences for abusive sexual contact if the victim is
under the age of 12 and doubles the maximum prison sentence
available for second-time sex offenders. The bill also
authorizes the pursuit of a civil remedy for personal injuries
resulting from certain sex crimes against children.
Lastly, H.R. 3494 gives law enforcement the tools it needs
to track down kidnappers, and serial killers. Importantly, the
bill allows for administrative subpoenas in certain child
exploitation investigations and provides for the immediate
commencement of federal investigations in kidnaping cases. H.R.
3494 also restructures the currently existing Morgan P.
Hardiman Missing and Exploited Children's Task Force into a
resource center to improve its effectiveness in kidnaping and
serial murder investigations. As amended in Committee, the bill
also prohibits unsupervised access to the Internet by federal
prisoners; expresses a sense of Congress that state governors,
state legislators, and state prison officials should also
prohibit unsupervised access to the Internet by state
prisoners; and requires the Attorney General to report to
Congress on the extent to which states currently allow prisoner
access to the Internet.
On April 30, 1998, the Subcommittee held a hearing on H.R.
3494 and related bills pertaining to crimes against children.
Those bills included H.R. 305, the ``Protection from Sexual
Predators Act of 1997''; H.R. 1972, the ``Children's Privacy
Protection and Parental Empowerment Act of 1997''; H.R. 2173,
the ``Child Abuse Notification Act of 1997''; H.R. 2122, the
``Joan's Law Act of 1997''; H.R. 2488, the ``Volunteers for
Children Act''; H.R. 2815, the ``Protecting Children From
Internet Predators Act of 1997''; H.R. 3185, the ``Abolishing
Child Pornography Act''; H.R. 3729, the ``Stop Trafficking of
Pornography in Prisons Act of 1998'' and H. Con. Res. 125,
expressing the sense of the Congress that each State should
enact legislation regarding notification procedures necessary
when a sexually violent offender is released.
The Subcommittee heard testimony from Deborah Niemann-
Boehle, Chicago, Illinois; the Honorable Jerry Weller, Eleventh
District of Illinois, U.S. House of Representatives; the
Honorable Bob Franks, Seventh District of New Jersey, U.S.
House of Representatives; the Honorable Gil Gutknecht, First
District of Minnesota, U.S. House of Representatives; the
Honorable Debra Pryce, Fifteenth District of Ohio, U.S. House
of Representatives; the Honorable Nick Lampson, Ninth District
of Texas, U.S. House of Representatives; the Honorable Bob
Riley, Third District of Alabama, U.S. House of
Representatives; the Honorable Louise Slaughter, Twenty-Eighth
District of New York, U.S. House of Representatives; and the
Honorable Mark Foley, Sixteenth District of Florida, U.S. House
of Representatives. The Subcommittee also heard testimony from
the Administration: Kevin DiGregory, Deputy Assistant Attorney
General, Criminal Division, U.S. Department of Justice.
On April 30, 1998, the Subcommittee on Crime was discharged
from further consideration. On May 6, 1998, the full Committee
considered the bill in open session and ordered it reported
favorably to the House as amended (H. Rept. 105-557). On June
11, 1998, H.R. 3494 passed the House, as amended, with
additional floor amendments by a vote of 416 yeas to 0 nays,
and 1 voting ``present.'' On June 16, 1998, the bill was
reported favorably to the Senate Judiciary Committee. On
September 17, 1998, H.R. 3494, the ``Protection of Children
from Sexual Predators Act'' was reported favorably to the
Senate, amended. On October 9, 1998, the bill passed the Senate
with additional floor amendments by unanimous consent.
Several provisions were stricken from the House-passed
bill by the Senate. While the House bill would have prohibited
contacting a minor over the Internet for the purposes of
engaging in illegal sexual activity and would have established
a 3-year minimum term of imprisonment for using a computer to
entice or coerce a minor to engage in illegal sexual activity,
the Senate did not adopt this language. The House bill would
have also cracked down on serial rapists by mandating life in
prison for such repeat offenders and would have increased
penalties for possessing 50 or more images of or items
containing child pornography, the Senate struck this language
during Committee markup. The House bill would have authorized
federal jurisdiction in kidnaping cases if any facility or
means of interstate or foreign commerce was used in furtherance
of the offense or the kidnaping offense affects interstate or
foreign commerce and would have reauthorized certain Violence
Against Women Act provisions, but Senate did not adopt these
provisions. On October 12, 1998, the House agreed to the Senate
amendments to H.R. 3494 by a vote of 400 yeas to 0 nays, and 2
voting ``present.'' H.R. 3494, the ``Protection of Children
from Sexual Predators Act of 1998,'' was signed into law by the
President on October 30, 1998 (Public Law 105-314).
Deadbeat Parents Punishment Act of 1997
On March 26, 1998, the Subcommittee held a markup and
considered H.R. 2925, the ``Deadbeat Parents Punishment Act of
1997.'' The bill was ordered favorably reported to the full
Committee. H.R. 2925 establishes federal penalties for the
egregious failure to pay legal child support obligations. On
April 1, 1998, H.R. 2925 was considered by the full Committee
and ordered reported favorably to the House. On May 7, 1998,
Mr. Hyde introduced an identical version to H.R. 2925, H.R.
3811, the ``Deadbeat Parents Punishment Act of 1998.'' On May
11, 1998, the Subcommittee on Crime was discharged from further
consideration; on May 12, 1998, the full Committee was
discharged from further consideration. On May 12, 1998, H.R.
3811 passed the House in lieu of H.R. 2925 under suspension of
the rules, by a vote of 402 yeas to 16 nays. H.R. 3811 was
passed by the Senate on June 5, 1998, and signed by the
President on June 24, 1998 (Public Law 105-187).
No Second Chances for Murderers, Rapists, or Child Molesters Act of
1998
Despite the fact that violent criminals are serving longer
sentences nationwide, and expected days of imprisonment have
slowly recovered from an all-time-low in the mid-70s,
accountability in our nation's criminal justice systems is
still lacking. The justice system imprisons barely one criminal
for every 100 violent crimes. In 1994, the most recent year in
which coinciding data is available 10,900,000 million violent
crimes were committed in the United States, yet 1,860,000 of
these violent crimes were reported to the police. There were
778,000 arrests, 165,000 convictions, and of those arrested,
100,000 were sent to prison.
According to the Department of Justice, the average
sentence for a violent crime is 9.8 years. The average time
served for a violent crime is 4.5 years, or 46 percent of that
sentence. For all offenses, the average sentence is 5.9 years,
the average time served 2.2 years or 38 percent of that
sentence. Many offenders who are released from prison go on to
commit new crimes. Two-thirds of all individuals arrested for
murder, rape, robbery, or assault in 1994 had a prior arrest,
almost 40 percent had at least 5 prior arrests. Over a 3-year
period following prison release, more than half of individuals
convicted rape and half of those convicted of sexual assault
were re-arrested for new crimes. The failure to hold convicted
violent or repeat criminals accountable for their crimes has
done much to erode public trust in our criminal justice system.
The failure to incarcerate these chronic offenders costs
thousands of lives each year. . . .
On September 17, 1998, the Subcommittee held a hearing on
H.R. 4258, the ``No Second Chances for Murderers, Rapists, or
Child Molesters Act of 1998.'' H.R. 4258 would levy penalties
against states after they have released violent offenders who
have served their sentences if the offender crosses state lines
and commits a new crime of violence. If an offender is
convicted of murder or specified sex crimes in one state served
his time, was released, and traveled to a second state where he
committed a similar crime, the bill would require the U.S.
Attorney General to transfer $100,000 from the first state's
funds from federal law enforcement assistance programs to the
second state. In addition to the sponsor of the bill,
Congressman Matt Salmon, 1st District of Arizona, the witnesses
who testified at the hearing were victims, or family members of
victims, of violent crimes committed by repeat offenders. They
included: Marc Klaas, Sausalito, California; Mary Vincent and
Mark Edwards, Esq., Santa Ana California; Louis Gonzales,
Newfield, New Jersey; Trina Easterling, Slydell, Louisiana; and
Jeremy Brown, South Nyack, New York. No further action was
taken on H.R. 4258 in the 105th Congress.
Violent Crimes Committed by Repeat Offenders and Criminals Serving
Abbreviated Sentences
On May 7, 1997, Mr. Barcia introduced H. Con. Res. 75,
which expresses the sense of Congress that States should work
more aggressively to attack the problem of violent crimes
committed by repeat offenders and criminals serving abbreviated
sentences. The legislation commends those States which have
made improvements in their criminal justice laws to ensure that
criminals serve an appropriate amount of time in prison, and
encourages the remaining States to adopt legislation to
increase the amount of time served by violent offenders. The
resolution further emphasizes Congress' support for the
requirement that violent criminals should serve at least 85% of
their sentences. H. Con. Res. 75 was ordered reported to the
full Committee by the Subcommittee on Crime on June 12, 1997.
On June 18, 1997, the resolution was ordered reported to the
House and reported to the House on June 26, 1997, (H. Rept.
105-157). On June 28, 1997, H. Con. Res. 75 was considered by
the House and agreed to by the House with an amendment on July
29, 1997 (400 yeas; 24 nays; and 1 present). On July 29, 1997,
the resolution was referred to the Senate Committee on the
Judiciary. On June 15, 1998, the Senate Judiciary Committee was
discharged and the resolution was agreed to by the Senate.
The Protection of Our Children Should Be the Nation's Highest Priority
On May 20, 1997, Mr. Collins introduced H. Res. 154, a
resolution expressing the sense of the House that the Nation's
children are its most valuable assets and that their protection
should be the Nation's highest priority. H. Res. 154 is to
express Congressional commitment to the safety and protection
of our Nation's children. It provides that the States should
have in place laws which severely punish individuals convicted
of offenses against children. The resolution declares that law
enforcement agencies should take the necessary steps to
safeguard children against the dangers of abduction and
exploitation and should work in close cooperation with Federal
law enforcement to ensure a rapid and efficient response to
reported child abductions, especially in cases where a child's
life may be in danger. No hearings were held on H. Res. 154.
The Subcommittee on Crime ordered H. Res. 154 reported to
the full Committee on June 12, 1997. On June 18, 1997, the
resolution was ordered reported to the House by the Judiciary
Committee and the resolution was reported to the House on June
26, 1997 (H. Rept. 105-160). On July 8, 1997, H. Res. 154 was
agreed to by the House.
REINVIGORATING THE WAR ON DRUGS
Almost all of the indicators regarding the drug problem in
America--most significantly, youth drug use--are heading in the
wrong direction. Drug quantity is up; drug prices are down, and
drug use is up. Consequently, the Subcommittee on Crime has
focused aggressively on the growing drug crisis in America. It
has done so with an eye toward ensuring an effective counter
drug response on all fronts: drug source countries, where the
drugs are grown; the transit zone, where drugs can be
interdicted; domestic law enforcement, focusing on dismantling
large trafficking organizations; and demand reduction.
Specifically, the Subcommittee has sought to correct the
imbalanced approach to the drug problem of the last 6 years by
rebuilding the U.S. source country and interdiction capability,
and by further strengthening our domestic law enforcement
capability.
Western Hemisphere Act of 1998
H.R. 4300, The ``Western Hemisphere Drug Elimination Act''
was introduced by Chairman McCollum on July 22, 1998. In 1998,
the streets of our nation are flooded with more cocaine and
heroin at cheaper prices than at any time in our history. This
legislation is intended to provide the resources and the
direction to reduce the supply of drugs coming into our nation
from abroad. The plan put forth in this legislation is designed
to cut the flow of drugs into our country by 80% within 4
years. It is the most dramatic, exhaustive, targeted effort
ever conceived to stop the drug flow from Latin America.
The legislation is intended to strengthen the counter
narcotics infrastructure in source countries and transit zones
from 1999 through 2001. Such infrastructure will require a mix
of improved intelligence, personnel, technology and training,
all of which are provided by this legislation.
All of the cocaine entering the United States comes from
Colombia, Peru and Bolivia. More than half the heroin entering
the United States and virtually all of it in the eastern half
comes from Colombia. While some heroin is produced in Mexico,
Mexico is principally a transit country. The objective in this
legislation is to cut the flow of cocaine and heroin not only
before it reaches the United States, but before it reaches
Mexico. The plan and the specific resources authorized in this
bill were developed from a ``bottom-up'' review involving
extensive input from the Department of Defense, State
Department, Drug Enforcement Administration and U.S.
Intelligence personnel on the ground working in Colombia, Peru,
Bolivia, and the transit zone north of these source countries.
The legislation was referred to 5 committees (Committees on
International Relations, Ways and Means, the Judiciary,
National Security, and Transportation and Infrastructure). The
Judiciary Committee was discharged on September 15, 1998. On
September 16, 1998, H.R. 4300 passed the House, amended, by a
vote of 384 yeas to 39 nays. Much of the language from H.R.
4300 was included in the Omnibus Consolidated and Emergency
Supplemental Appropriations Act for fiscal year 1999 (H. Rept.
105-825, Public Law 105-277).
Drug Demand Reduction Act
On September 11, 1998, Mr. Portman introduced H.R. 4550,
the ``Drug Demand Reduction Act.'' H.R. 4550 was referred to
the Committee on Commerce in addition to the Committees on
Government Reform and Oversight, Small Business, Transportation
and Infrastructure, the Judiciary and Education and the
Workforce. On September 14, 1998, this bill was referred to the
Subcommittee on Crime. The Judiciary Committee was discharged
on September 16, 1998. On September 16, 1998, the House passed
the bill with an amendment (396 yeas; 9 nays). On September 17,
1998, H.R. 4550 was received in the Senate. No hearings were
held, no report was filed on this bill. No further action was
taken on H.R. 4550 in the 105th Congress.
The Medical Marijuana Referenda Movement in America
After years of decline, marijuana use dramatically
increased in recent years. The number of individuals seeking
treatment for marijuana addiction rose to more than 140,000 in
1996. The University of Michigan's ``Monitoring the Future
Survey'' reveals that marijuana use by 8th, 10th, and 12th
graders declined steadily from 1980 to 1992. But, from 1992 to
1996, marijuana use by these populations increased
dramatically--by 253 percent among 8th graders, 151 percent
among 10th graders, and 84 percent among 12th graders.
Marijuana users are also younger. The annual survey conducted
by the Partnership for a Drug-Free America released on March 4,
1997, found that among children 9 through 12 years of age who
were interviewed, nearly one-fourth of them were offered drugs
in 1996, with marijuana being the predominant drug offered.
Only 19 percent of the same age group gave this response on the
survey covering 1993. The 1996 ``Monitoring the Future Survey''
reported that 8 percent of 6th graders interviewed said they
had tried marijuana, while 23 percent of the 7th graders and 33
percent of the 8th graders said they had done so.
The harmful effects of marijuana use are now clear, having
been extensively studied since the 1960s. For example, the
gateway effect of marijuana is better understood: According to
the 1994 study by Columbia University's Center on Addiction and
Substance Abuse, 12 to 17-year-olds who use marijuana are 85
times more likely to use cocaine than those who abstain from
marijuana. The study further reveals that 60 percent of
adolescents who use marijuana before the age 15 will later use
cocaine, and 43 percent of teenagers who use marijuana by age
18 go on to use cocaine.
A review of over 6,000 articles from the medical
literature, published in the May 15, 1997, Annals of Internal
Medicine evaluating the potential medicinal applications of
crude marijuana, concluded the following: marijuana is not a
medicine; its use causes significant toxicity; numerous safe
and effective medicines are available which makes the use of
crude marijuana unnecessary and inappropriate for medicinal
purposes. Claims that smoking marijuana is beneficial for a
variety of illnesses are anecdotal and not founded in
scientifically accepted research. To the contrary, according to
the National Institute of Health (NIH), research indicates that
smoking marijuana may lead to a variety of clinically
significant impairments. At the same time, experts at the NIH
have indicated that some of the more than 65 cannaboids in the
marijuana plant may prove to be medically beneficial,
suggesting that additional research in this area may be
helpful. However, due to the fact that smoking plant material
poses patient dangers as well as dose standardizing problems,
NIH encourages the development of delivery routes other than
smoking.
The federal drug approval process has been a long-
established element of U.S. drug control policy. Before any
drug can be approved as a medication it must meet rigorous and
extensive scientific criteria, as established by the Food and
Drug Administration. As such, no drug can be prescribed without
first having obtained FDA approval. Currently, marijuana--in
any form--has not been approved as medication.
On October 1, 1997, the Subcommittee held a hearing on the
Medical Marijuana Referenda Movement in America. The
Subcommittee heard testimony from Barry McCaffrey, Director,
Office of National Drug Control Policy, The White House; Dr.
Alan Leshner, Director, National Institute of Drug Abuse,
Department of Health and Human Services; James E. Copple,
President and CEO, Community Anti-Drug Coalitions of America,
Alexandria, Virginia; Richard M. Romley, Maricopa County
Attorney, Maricopa County, Arizona; Dennis Peron, Director,
Californians for Compassionate Use, San Francisco, California;
Dr. Lester Grinspoon, Associate Professor of Psychiatry,
Harvard Medical School, Boston, Massachusetts; Ronald E.
Brooks, Chair, Drug Policy Committee, California Narcotic
Officers'' Association, Santa Clara, California; Dr. Janet D.
Lapey, Executive Director, Concerned Citizens for Drug
Prevention, Inc., Hanover, Massachusetts; Dr. Roger Pilon,
Senior Fellow, Cato Institute, Washington, D.C.
On February 26, 1998, Chairman McCollum introduced H. Res.
372, expressing the sense of the House that marijuana is a
dangerous and addictive drug and should not be legalized for
medicinal use. The resolution also calls on the Attorney
General to submit a report to the House Judiciary Committee
within 90 days of the adoption of this resolution which reports
on: (a) the total quantity of marijuana eradicated in the
United States from 1992 through 1997; and (b) the annual number
of arrests and prosecutions for marijuana offenses from 1992
through 1997.
H. Res. 372 was introduced February 26, 1998 (in form
agreed upon by the Subcommittee on Crime on February 25, 1998)
and forwarded to the full Committee as an original resolution.
It was additionally referred to the Committee on Commerce. The
full Committee met in open session and considered H. Res. 372,
ordering it reported favorably to the House (H. Rept. 105-451).
On March 18, 1998, the Committee on Commerce was discharged
from further consideration. On March 18, 1998, H. Res. 372 was
placed on the House Calendar. On April 30, 1998, Chairman
McCollum introduced a revised version of H. Res. 372, H.J. Res.
117. On September 15, 1998, H.J. Res. 117 passed the House,
under suspension of the rules, by a vote of 310 yeas to 93
nays. The title was amended to read, ``Expressing the sense of
Congress in support of the existing Federal legal process for
determining the safety and efficacy of drugs, including
marijuana and other schedule I drugs, for medicinal use.''
Language similar to H.J. Res. 117 was incorporated into the
Omnibus Consolidated and Emergency Supplemental Appropriations
Act for fiscal year 1999. The resolution declares the support
of Congress for the current legal, medical process for
evaluating the safety and efficacy of medications and expresses
Congressional opposition to legalizing marijuana for medicinal
use without the Food and Drug Administration approving its use
as a medication (can be found in H. Rept. 105-825, Public Law
105-277).
Money Laundering
Since the current money laundering laws were enacted in
1986, the criminal conduct that those laws were intended to
address has become increasingly international in scope.
Criminals who commit crimes abroad are using the United States
and its financial institutions as havens for laundered funds,
at the same time that criminals committing offenses in the
United States are using foreign banks and bank secrecy
jurisdictions to conceal the proceeds of their offenses.
In the 105th Congress, the Subcommittee on Crime sought to
address this truly international law enforcement problem. On
July 24, 1997, the Subcommittee held a hearing on the nature
and extent of domestic and international money laundering, its
role in the international drug trade, and methods of combating
the problem. The Subcommittee heard testimony from Mary Lee
Warren, Deputy Assistant Attorney General, Criminal Division,
U.S. Department of Justice; Raymond Kelly, Under Secretary of
the Treasury for Enforcement, Department of the Treasury;
Michael Zeldin, Partner, Price Waterhouse LLP; Vincent
Bugliosi, author, The Phoenix Solution; Charles Saphos,
Partner, Fila & Saphos; John Byrne, Senior Counsel & Compliance
Manager, American Bankers Association; Brendon Hewson, Senior
Vice President, International Investigations, NationsBank.
The Subcommittee also held a hearing on October 16, 1997,
on the anatomy of a Colombian drug trafficking operation in the
United States. The Subcommittee heard testimony from only one
witness, ``Mr. Rodriguez,'' a former member of the New York
Branch of the Medellin Cartel (assumed name for the purposes of
the hearing). At the hearing the Subcommittee heard first hand
information about how drugs and money are illegally transported
by drug cartels.
On April 29, 1998, Chairman McCollum introduced H.R. 3745,
the ``Money Laundering Act of 1998.'' H.R. 3745 updates the
money laundering laws to enable law enforcement to respond to
the increasingly international nature of money laundering. It
does so by making the operation of an illegal money
transmitting business subject to civil forfeiture; authorizing
federal courts to restrain the U.S. assets of a person arrested
abroad for certain offenses (including money laundering,
reporting violations, and ``structuring'' offenses) so as to
prevent those assets from disappearing; requiring litigants to
make records in bank secrecy jurisdictions (in foreign
countries) available to the Government, if the records are
material to a claim pending in federal court; granting federal
courts jurisdiction over civil money laundering actions filed
against foreign banks that launder money in the U.S.; expanding
the list of foreign ``specified unlawful activities''
(predicate offenses for money laundering) to include offenses
such as foreign crimes of violence, fraud, bribery, and
smuggling; and authorizing the Secretary of State to transfer
forfeited property to a foreign country which participated in
the seizure or forfeiture of the property, even if that country
has not been fully certified (pursuant to the annual drug
certification process), if the Secretary finds the transfer to
be in the national interest.
On June 5, 1998, the Subcommittee on Crime held a markup
and considered H.R. 3745, the ``Money Laundering Act of 1998,''
and the bill was ordered reported favorably to the full
Committee. No further action was taken on H.R. 3745 in the
105th Congress.
Money Laundering and Financial Crimes Strategy Act of 1997
On June 16, 1997, H.R. 1756, the ``Money Laundering and
Financial Crimes Strategy Act of 1997,'' was referred to the
Subcommittee on Crime. H.R. 1756 was reported favorably to the
House with an amendment from the Committee on Banking and
Financial Services on June 25, 1998 (H. Rept. 105-608, part 1).
The Committee on the Judiciary was discharged from further
consideration July 31, 1998. On October 5, 1998, H.R. 1756
passed the House with an amendment under suspension of the
rules. On October 6, 1998, the bill was received in the Senate.
The Senate passed H.R. 1756 with an amendment on October 15,
1998. On October 16, 1998, the House agreed to the Senate
amendment. H.R. 1756 was approved by the President on October
30, 1998. (Public Law 105-310).
Violent Crimes Committed by Repeat Offenders and Criminals Serving
Abbreviated Sentences
On June 9, 1998, Mr. Bachus introduced H. Con. Res. 288, a
resolution expressing the sense of the Congress that the United
States should support the efforts of Federal law enforcement
agents engaged in investigation and prosecution of money
laundering associated with Mexican financial institutions.
On June 16, 1998, H. Con. Res. 288 was referred to the
Subcommittee on Crime. No hearings were held and no report was
filed. On June 22, 1998, the Committee was discharged from
further consideration and the resolution was agreed to by the
House (404 yeas; 3 nays). H. Con. Res. 288 was referred the
Senate Committee on the Judiciary June 23, 1998. No further
action was taken on H. Con. Res. 288 in the 105th Congress.
Speed Trafficking Life in Prison Act of 1997
In the 104th Congress, the Subcommittee held two hearings
on the increased presence of methamphetamine (often called
``speed'') trafficking in America. One of those hearings
examined issues related to a bill introduced in the 104th
Congress, H.R. 3852, the ``Comprehensive Methamphetamine
Control Act of 1996.'' The Senate companion bill, S. 1965 was
amended and passed by the Congress and signed by the President
on October 3, 1996 (Public Law 104-237). Not all the provisions
in the ``Comprehensive Methamphetamine Control Act of 1996,''
were passed in the final version that became law in the 104th
Congress. The Senate did not adopt a provision to increase
penalties for trafficking methamphetamine equal to those of
crack-cocaine.
In the 105th Congress, Congressman Pete Sessions introduced
H.R. 3898, the ``Speed Trafficking Life in Prison Act of
1997.'' H.R. 3898 included the provision from the
``Comprehensive Methamphetamine Control Act of 1996'' which was
not adopted in the 104th Congress. H.R. 3898 reduces by one-
half the quantity of methamphetamine required to trigger
already existing mandatory minimum prison sentences, so as to
make the penalty equal to that of crack-cocaine. On May 19,
1998, H.R. 3898 was referred to the Committee on the Judiciary
and the Committee on Commerce for consideration of such
provisions as fall within the jurisdiction of the committee
concerned. On May 26, 1998, the bill was referred to the
Subcommittee on Crime. On June 5, 1998, the Subcommittee held a
markup and H.R. 3898 was ordered favorably reported the full
Committee. On July 21, 1998, the full Committee held a markup
and H.R. 3898 was ordered favorably reported to the House by a
vote of 21 yeas to 6 nays (H. Rept. 105-711, part I). On
September 14, 1998, the Committee on Commerce was discharged
from further consideration. On September 15, 1998, H.R. 3898
passed the House, under suspension of the rules. While no
further action was taken on H.R. 3898 in the 105th Congress,
language from H.R. 3898 was incorporated in the Omnibus
Consolidated and Emergency Supplemental Appropriations Act for
fiscal year 1999 (H. Rept. 105-825, Public Law 105-277).
Controlled Substances Trafficking Prohibition Act
On April 1, 1998, Mr. Chabot introduced H.R. 3633, the
``Controlled Substances Trafficking Prohibition Act'' which
places limitations on controlled substances brought into the
United States from Mexico. The bill was referred jointly to the
Judiciary Committee and the Committee on Commerce. On March 26,
1998, the Subcommittee held a hearing on issues related to the
problem of individuals bringing large quantities of illegal
prescription drugs across our borders into the United States.
The Subcommittee heard testimony from the sponsor of the bill,
the Honorable Steve Chabot, First District of Ohio, U.S. House
of Representatives; Matt Meagher, Senior Investigative
Correspondent, Inside Edition; Wesley S. Windle, Program
Officer, Passenger Operations Division, U.S. Customs Service;
Christopher E. Anders, Legislative Counsel, American Civil
Liberties Union; Marilyn Wolfe; Michael G. Graney, Executive
Vice President, New York Council 82, American Federation of
State, County, and Municipal Employees; Correctional Officer
John L. Parcell, Corrections and Criminal Justice Coalition.
On May 7, 1998, the Subcommittee held a markup and
considered the bill, H.R. 3633, the ``Controlled Substances
Trafficking Prohibition Act,'' ordering it favorably reported
to the full Committee. On May 20, 1998, the full Committee held
a markup and H.R. 3633 was ordered reported favorably to the
House (H. Rept. 105-629, part 1). On July 16, 1998, the
Committee on Commerce was discharged from further
consideration. On August 3, 1998, H.R. 3633 passed the House,
was amended by title, under suspension of the rules. On August
31, 1998, the bill was received in the Senate and on October
20, 1998, passed by the Senate. H.R. 3633 was approved by the
President on November 10, 1998. (Public Law 105-357)
Drug Diversion Investigations by the United States Drug Enforcement
Administration
Diversion (the redirecting of drugs from the legal stream
of commerce into criminal hands) of legitimately produced,
prescription controlled substances has long been a serious
problem in the United States. In 1996, licitly manufactured
controlled substances accounted for one-quarter of drug deaths
reported by medical examiners and one-quarter of drug-related
emergency room admissions. In 1995, at least 6.6. million
Americans abused at least one prescription psychotherapeutic
drug (e.g., a stimulant, sedative, antidepressant or
analgesic). Prior to enacting the Controlled Substances Act
(CSA) in 1970, an estimated 65 percent of all drug deaths in
the United States arose from licitly produced drugs, and almost
50 percent of the amphetamines and barbiturates produced
legitimately in the United States were diverted into illicit
channels.
Preventing the diversion of legitimately produced drugs
into illicit channels is one of the primary missions of the
Drug Enforcement Administration (DEA) and a major purpose of
the CSA. The CSA and the Code of Federal Regulations establish
a system of drug distribution which is designed to prevent
unauthorized individuals from engaging in drug diversion and to
prevent registered individuals from using their authority under
the CSA to engage in pharmaceutical drug diversion. The core
requirements of the federal diversion prevention program are
the registration of all drug manufacturers, distributors,
dispensers (including hospitals), pharmacies and doctors with
the DEA and the requirement that all such registrants maintain
careful records, as prescribed in the Code of Federal
Regulations. These records ensure a ``paper trail'' to account
for each transaction, both to deter diversion and to enable
actual diversion to be investigated. The registration and
extensive record-keeping requirements make the pharmaceutical
and legitimate drug industry among the most pervasively
regulated industries in the United States.
The DEA is charged with enforcing the record-keeping
requirements established in the CSA, with the aim of deterring
drug diversion and identifying actual and potential sources of
diversion. Section 842 of title 21, United States Code,
establishes the principal record-keeping requirements on
registrants. Subsection 842(a)(5) provides that it is unlawful
for any registrant ``to refuse or fail to make, keep, or
furnish any record, report, notification, declaration, order or
order form, statement, invoice, or information required under
this subchapter . . .'' Subsection (a)(10) imposes an
additional, similar record-keeping requirement on registrants.
These two regulatory provisions do not require that the failure
to keep records properly must be ``knowing.'' Rather, they
establish a strict liability standard for non adherence. This
strict liability standard has been identified by law
enforcement as the principal contributing factor to the
development of an industry culture of extensive care and
precision regarding record-keeping. Industry representatives,
on the other hand, have argued that the strict liability
standard punishes innocent, unintentional and minor record-
keeping mistakes, whether or not those mistakes led to any
diversion.
Section 842(c) establishes civil penalties of up to $25,000
for a violation of the record-keeping and reporting
requirements in the CSA. This maximum fine amount has been
identified by law enforcement as an extremely effective
inducement to comply with the record-keeping requirements.
Industry representatives, on the other hand, have argued that
the maximum fine amount has led to unacceptable practices by
law enforcement. This includes the tallying up of all of the
record-keeping mistakes by a registrant and then threatening
the maximum possible civil fine corresponding to the mistakes--
at times totaling millions of dollars. Even if no case is
brought, or no settlement is reached, the registrant has had to
endure the considerable cost and possible damage to reputation
associated with defending against the possible suit. Witnesses
on the second panel will provide testimony regarding specific
instances of this practice.
There were 2,211 total diversion investigations in fiscal
year 1997. Of these, 151 (or 6.8%) were pharmacy
investigations, leading to 130 ``actions'' being taken against
pharmacies. These 130 actions consisted of 52 letters of
admonition, 35 civil fines, 22 criminal fines, 19 voluntary
surrenders of registration, and two administrative hearings.
The civil penalty authority has been used sparingly over
the years. The total number of registrants under the CSA in
fiscal year 1997 was 955,207. Of these, 63,065 (or 6.6%) were
pharmacy registrants. Of the 63,065 pharmacies registered with
the DEA in fiscal year 1997, only 35 (or 0.055%) paid a civil
penalty. Of those 35 pharmacies, four were chain drug stores.
The DEA Diversion Program emphasizes cooperation with and
voluntary compliance by registrants. It is DEA policy that
civil actions are not encouraged as a primary compliance tool,
except in instances of actual, willful diversion, or where a
registrant's irresponsibility or unwillingness to comply has
created a strong potential for diversion. The Department of
Justice maintains that federal prosecutors have not, as a rule,
sought civil penalties except in cases of egregious, extensive
or repeated violations.
On August 6, 1998, the Subcommittee held a hearing on drug
diversion investigations by the United States Drug Enforcement
Administration. The Subcommittee heard testimony from Rick
Beard, owner, Harvest Drug & Gift, Burkburnett, Texas; Philip
P. Burgess, National Director of Pharmacy Operations, Walgreen
Corporation, Deerfield, Illinois; David R. Work, Executive
Director, North Carolina Board of Pharmacy, Carrboro, North
Carolina; James R. Phelps, Attorney, Phelps & McNamara, P.C.,
Washington, D.C. Language providing pharmacies with a needed
measure of relief, without weakening DEA diversion
investigation was incorporated in the Omnibus Consolidated and
Emergency Supplemental Appropriations Act for fiscal year 1999
(H. Rept. 105-825, Public Law 105-277).
Date-Rape Drugs
On July 30, 1998, the Subcommittee held a hearing on the
use of controlled substance used to commit date-rape. The
Subcommittee heard testimony from Raul Farias, La Porte, Texas;
Michael Stevens, Detective, Undercover Drug Investigations,
Orlando Police Department, Orlando, Florida; Dr. Joyce M.
Carter, Chief Medical Examiner, Joseph A. Jachimczyk, Forensic
Center, Houston, Texas; Paul Doering, Professor, Department of
Pharmacy Practice, University of Florida; John H. King III,
Deputy Assistant Administrator, Office of Diversion Control,
Drug Enforcement Administration, Department of Justice.
VITAL TOOLS FOR LAW ENFORCEMENT
Multipoint Wiretapping
In the last few years there have been rapid advances in the
area of wireless communications. Wireless telephones have
become increasingly available in all areas of the country and
have become so affordable that they have become common,
everyday devices. Unfortunately, this technology has also given
criminals new tools with which to commit crime and a new
mobility allowing them to better evade detection. Over the past
several years, law enforcement agencies have discussed with the
Committee their concern that the common manner of intercepting
telephone calls--placing a wiretap on a single, stationary
telephone--was inadequate to investigate crimes such as drug
dealing, kidnaping, and domestic terrorism. Criminals
committing these and other crimes well know the limits of the
wiretap law and often use public telephones, or stolen or
cloned wireless telephones, in order evade the placing of a
wiretap that would intercept their communications. Because
criminals who use pay telephones may never use the same
telephone with regularity, law enforcement officials are unable
to obtain a wiretap order on that telephone. Criminals who use
wireless telephones often discard the telephone or reprogram
its number every few days in order to evade the placing of a
wiretap on the phone.
Existing law does allow law enforcement agencies to obtain
a wiretap order that does not specify the phone to be tapped--
and thus allowing law enforcement officials to tap any
telephone used by the person named in the application--but only
if the agency can show that the person named had acted with the
``purpose'' to ``thwart interception'' on his telephone calls
by changing telephones. Law enforcement officials have long
informed the Committee that they have found it hard to make
this showing of purpose to the satisfaction of judges.
In order to remedy this problem, Representative Bill
McCollum together with Representative Henry Hyde,
Representative John Conyers, and Representative Chuck Schumer,
introduced H.R. 3753, the ``Multipoint Wiretap Act of 1998.''
The bill was referred to the Subcommittee on Crime. While the
Subcommittee did not take formal action on this bill, the text
of the bill was included as section 604 of the Intelligence
Authorization Act of 1998 (Public Law 105-272). This section
makes it easier for law enforcement officials to obtain wiretap
orders on a specific person. Under the Act, officials now only
must show the court that the actions of the person named in the
wiretap application could have the ``effect'' of substantially
thwarting an interception. In order to balance this lower
standard to obtain the wiretap order, however, the Act requires
that judges impose a new requirement--that law enforcement
officials be prohibited from activating a wiretap until it is
reasonable to presume that the person named in the order is
``reasonably proximate'' to the telephone to be tapped.
Under this new requirement, a person would only be deemed
``reasonably proximate'' to the telephone when law enforcement
officials actually observe the person using a telephone (e.g.,
in a public place, at a pay phone, or using a wireless phone in
a car) or when they are in communication with informants
present in a building who observe the person using a telephone
or entering a room where a telephone is known to be. The intent
behind this provision is to minimize the possibility that the
government would hear conversations not involving the person
named in the wiretap order.
Crime Identification Technology Act
On July 13, 1998, the Senate passed the bill S. 2022, the
``Crime Identification Technology Act of 1998.'' The bill
authorizes $250 million a year over 5 years for flexible
discretionary grants to states to upgrade criminal history
record systems, promote integration of local, state and
national criminal justice information and communications
systems, and assist crime laboratories to reduce the backlog of
forensic analysis requests that exists throughout the country.
Grants may be given to states to be used in conjunction with
units of local government, State and local courts, and other
states.
Effective access to criminal history data has become a
necessity not only for law enforcement agencies, but for school
districts, volunteer organizations, and a host of professions
that want to conduct background checks to avoid hiring
convicted offenders who pose a danger to children. The FBI
processes approximately 52,000 requests for criminal history
information via fingerprint cards each day, about half the
requests are for criminal justice purposes, the other half are
for civil purposes (government licensing, child care, etc.).
The federal government has invested significant federal
resources into systems providing criminal history data,
including almost $2 billion for the Integrated Automated
Fingerprint Identification System (IAFIS), and the Crime
Information Center 2000 (NCIC 2000), both of which should be
fully operational by fall of 1999. The National Integrated
Ballistics Network (NIBN), the National Criminal History
Improvement Program (NCHIP), the FBI's National Sex Offender
Database and the National Combined DNA Index System (CODIS) all
provide automated searching capabilities to allow law
enforcement obtain essential evidence and solve crimes. States
are requested to participate in all of these federal
initiatives, but many are a long way from becoming
computerized, nevertheless in a position to exchange compatible
crime data in a timely manner or in a computer-ready format.
Many state agencies have inadequate equipment to retrieve
information from a computer database quickly, or on a
widespread geographic basis. Presently, there is no
comprehensive program to support the integration of all of
these new technologies and systems. All of the benefits of
these federally funded information and identification systems
may go largely unrealized unless the states develop the ability
to use them. It is the purpose of this grant program to enable
states to utilize such federal initiatives.
The bill also includes two other provisions. Title II,
subtitle A of the bill is called the ``National Criminal
History Access and Child Protection Act'' and provides for a
compact between the states and the federal government to
facilitate the exchange of criminal history records for
noncriminal justice purposes. The compact is somewhat
administrative in nature, and requires no authorization for
funding. The Act facilitates authorized interstate criminal
history record exchanges for noncriminal justice purposes on a
uniform basis, while permitting each state to effectuate its
own dissemination and privacy policies within its own borders.
The Act also allows federal and state records to be provided
expeditiously to government and nongovernment agencies that use
such records in accordance with pertinent federal and state law
while enhancing the accuracy of the records and safeguarding
the information contained in the records from unauthorized
disclosure.
Subtitle B of the bill is called the ``Volunteers for
Children Act,'' which would amend the National Child Protection
Act of 1993 (called the ``Oprah Act'') to allow child care,
elder care or volunteer organizations to request access to FBI
criminal fingerprint background checks in the absence of
specific state laws or procedures allowing that access. This
modest change to current law does not override any state laws
regarding the use or dissemination of records. The House passed
this provision in H.R. 3494, the ``Child Protection and Sexual
Predator Punishment Act,'' which is pending in the Senate.
On August 4, 1998, the bill was referred to the
Subcommittee on Crime. On September 11, 1998, the Subcommittee
held a markup and considered S. 2022. On September 14, 1998,
the bill was ordered reported favorably, as amended, to the
full Committee. On October 7, 1998, the House Committee on the
Judiciary was discharged from further consideration. On October
7, 1998, S. 2022 passed the House, amended, under suspension of
the rules. On October 8, 1998, the Senate agreed to the House
amendment. On October 9, 1998, S. 2022 was signed into law by
the President (Public Law 105-251).
National Salvage Motor Vehicle Consumer Protection Act of 1997
H.R. 1839, the ``National Salvage Motor Vehicle Consumer
Protection Act of 1997,'' was introduced by Representative Rick
White on June 10, 1997. This bill will establish nationally
uniform requirements regarding the titling and registration of
salvage, nonrepairable, and rebuilt vehicles. On June 23, 1997,
H.R. 1839 was referred to the Committee on Commerce and the
Committee on the Judiciary, for a period to be subsequently
determined by the Speaker, for consideration of such provisions
as fall within the jurisdiction of the Committee concerned. On
June 23, 1997, H.R. 1839 was referred to the Subcommittee on
Crime. On September 30, 1997, the bill was reported with an
amendment to the House by the Committee on Commerce (H. Rept.
105-285, part 1); also, the Committee on the Judiciary was
discharged from further consideration. On November 4, 1997, the
bill passed the House with an amendment and on November 13,
1997, H.R. 1839 was referred to the Senate Committee on
Commerce, Science and Transportation. No hearings were held and
no further action was taken on H.R. 1839 in the 105th Congress.
Law Enforcement Advertisement Clarification Act of 1997
On June 10, 1997, Chairman McCollum introduced H.R. 1840,
the ``Law Enforcement Advertisement Clarification Act of
1997.'' This bill provides a narrow exception to the
prohibition on advertisement of electronic devices primarily
designed for interception. Under section 2512 of title 18,
United States Code, it is unlawful to advertise in interstate
or foreign commerce ``any electronic, mechanical or other
device knowing or having reason to know that the design of such
device renders it primarily useful for the purpose of
surreptitious interception.'' Unfortunately, the broad
restriction against advertisements also applies to
advertisements sent to legitimate law enforcement users.
H.R. 1840 creates an exception to section 2512, to permit
the advertisement of devices designed for surreptitious
interception to an agency of the United States, a State, or a
political subdivision thereof which is duly authorized to use
such devices. This bill will allow companies which manufacture
electronic devices to mail information about their equipment to
law enforcement agencies. No hearings were held on H.R. 1840.
On June 12, 1997, H.R. 1840 was ordered reported to the
full Committee by the Subcommittee on Crime. On June 26, 1997,
H.R. 1840 was ordered reported to the House (H. Rept. 105-162).
The bill passed the House on July 8, 1997, and was referred to
the Senate Committee on the Judiciary on July 9, 1997. The
Senate Committee on the Judiciary was discharged on November
10, 1997. H.R. 1840 passed the Senate on November 10, 1997. On
November 21, 1997, the bill was approved by the President and
became Public Law 105-112.
VIOLENT CRIME
Mandatory Minimum Sentences for Criminals Using Firearms
H.R. 424, introduced by Representative Sue Myrick, amends
section 924(c) of title 18, United States Code. Section 924(c)
provides for a mandatory minimum 5 years in prison for ``using
or carrying'' a firearm during and in relation to the
commission of a federal crime of violence or drug trafficking
crime. In the December, 1995 decision Bailey v. United States,
116 S.Ct. 501, the Supreme Court rejected the Justice
Department's interpretation of the words ``use or carry,'' so
that the section 924(c) penalty enhancement could only be
applied in a narrower set of circumstances. The Court held
that, in order to receive an enhancement for using or carrying
a firearm, a defendant must ``actively employ the firearm''
during and in relation to the crime of violence or drug
trafficking offense. In crafting this new standard, the Court
struck down two decisions by the U.S. Court of Appeals for the
District of Columbia.
H.R. 424 would have changed section 924(c) by striking the
current ``uses or carries'' standard, and replacing it with the
terms ``possessing, brandishing or discharging.'' The bill also
increased penalties under the new scheme of ``possessing,
brandishing or discharging'' to a mandatory minimum of 10 years
in prison for possessing, fifteen for brandishing and 20 years
for discharging.
On July 16, 1997, the Subcommittee held a markup and H.R.
424 was ordered reported favorably to the full Committee,
amended. On September 9, 1997, the full Committee considered
H.R. 424, and the bill was ordered reported favorably to the
House, as amended, with an additional Committee amendment, by a
vote of 17 yeas to 8 nays. The bill was reported to the House
on October 24, 1997 (H. Rept. 105-344). On February 24, 1998,
H.R. 424 passed the House, as amended, under suspension of the
rules, by a vote of 350 yeas to 50 nays). No further action was
taken on H.R. 424 in the 105th Congress.
The Senate companion bill to H.R. 424, S. 191, passed the
Senate on November 6, 1997, as amended. The bill was referred
to the House Subcommittee on Crime on January 30, 1998. On
October 9, 1998, the Judiciary Committee was discharged from
further consideration. On October 9, 1998, S. 191 passed the
House, amended, under suspension of the rules. The Senate
concurred in the House amendment on October 15, 1998. The bill
was signed by the President on November 13, 1998 (Public Law
105-386). S. 191, as sent to the President, retains the
``possessing, brandishing or discharging'' language, but lowers
the penalties to 5, 7 and 10 years, respectively. The penalties
are higher for a second offense, or if a machine gun,
destructive device, firearm muffler or firearm silencer are
used.
Veterans' Cemetery Protection Act of 1997
On June 12, 1998, the Subcommittee on Crime met in open
session and considered the bill, H.R. 1532, the ``Veteran's
Cemetery Protection Act of 1997.'' H.R. 1532 provides criminal
penalties for theft and willful vandalism at national
cemeteries. During the markup, the Subcommittee amended the
legislation so that, rather than create a new federal crime,
the United States Sentencing Commission is directed to increase
penalties for persons who steal, deface or destroy any federal
cemetery property. The bill was ordered reported favorably to
the full Committee, as amended on June 12, 1998. The full
Committee met in open session and considered the bill, H.R.
1532, and ordered it favorably reported to the House on June
21, 1998 (H. Rept. 105-142.) On June 23, 1997, H.R. 1532 passed
the House, as amended, under suspension of the rules.
The Senate companion bill to H.R. 1532, S. 813, passed the
Senate on November 4, 1997, with amendment, by unanimous
consent. The bill was held at the desk in the House on November
5, 1997. On November 8, 1997, S. 813 passed the House (in lieu
of H.R. 1532) under suspension of the rules. The bill was
signed by the President on November 19, 1997 (Public Law 105-
101.)
Domestic Violence Misdemeanor and Firearms Ownership
Passed during the 104th Congress, section 658 of the
Omnibus Appropriations bill for fiscal year 1997 (H. Rept. 104-
863) amended Sec. Sec. 921 and 922 of title 18, United States
Code, to prohibit persons previously convicted of a misdemeanor
crime of domestic violence from possessing a firearm. This
provision was originally adopted in the Treasury-Postal
Appropriations bill for Fiscal Year 1997 in the Senate through
a floor amendment offered by Senator Frank Lautenberg (D-NJ). A
modified version of this amendment was included in the omnibus
consolidated appropriations bill by the conferees. The modified
version narrowed the definition of a ``misdemeanor crime of
domestic violence,'' included some procedural safeguards, and
applied the ban to government employees, including police
officers. Neither the House of Representatives nor the Senate
held hearings on this issue.
A ``misdemeanor crime of domestic violence'' is defined
under the new law as an offense that is (1) either a federal or
state charge, and (2) has as an element the use or attempted
use of physical force, or the threatened use of a deadly
weapon, and (3) is committed by a current or former spouse,
parent or guardian, by a person with whom the victim shares a
child in common, by a person who is cohabitating with or has
cohabitated with the victim as a spouse, parent or guardian, or
by a person similarly situated as a spouse, parent or guardian.
In order for the gun ban to apply, the law requires that a
convicted person must have been represented by counsel, or
knowingly and intelligently waived the right to counsel. Also,
if the person was entitled to a jury trial, the law requires
that the case was tried by a jury, or the right to a jury was
knowingly and intelligently waived. Furthermore, no person
shall be considered to have been convicted of a misdemeanor
crime of domestic violence for purposes of gun ownership if the
conviction has been expunged or set aside, or is an offense for
which the person has been pardoned or has had civil rights
restored.
This ban does apply to law enforcement officers, including
federal agents. A general exemption for police officers and
military personnel from federal gun control laws does not apply
to this section. This law represents the first time that law
enforcement has not enjoyed an exemption from the federal gun
laws. Employees of government agencies convicted of qualifying
misdemeanors will not be able to lawfully possess firearms.
This includes law enforcement officers who may be required by
their departments or agencies to carry guns for employment
purposes.
Law enforcement agencies have been made aware of this new
restriction. The Bureau of Alcohol, Tobacco and Firearms sent
out an ``open letter'' to all State and local law enforcement
agencies describing their responsibilities under the new law.
BATF warned that all employees subject to this disability must
immediately dispose of all firearms and ammunition in their
possession. As this ban also applies to federal agencies, the
federal government has determined that the appropriate way to
handle this new requirement is to require all federal agents to
sign a form certifying that they have never been convicted of a
misdemeanor crime of domestic violence.
The Administration is interpreting section 658 to apply
retroactively to persons convicted of qualifying misdemeanors
which occurred before the date of enactment of the
appropriations bill. Advocates for those impacted by the
prohibition argue that such an interpretation is a violation of
the ex post facto clause, Article I, section 9 of the U.S.
Constitution. Broadly defined, an ex post facto law is one
which retroactively alters or increases a person's punishment
for a criminal act. These advocates assert that a person who
had been previously convicted of a misdemeanor crime of
domestic violence is now having that punishment
unconstitutionally increased by this belated loss of firearm
ownership.
Defenders of the provision respond that the law does not
increase punishment for any earlier misdemeanor crime, rather
it creates a new law. A person who continues to possess a gun
after the law became effective is in violation of the new law.
Moreover, they argue that the prohibitions of Article I,
section 9 relate only to penal laws, and that the disability
imposed is designed to accomplish a legitimate governmental
purpose.
The ``Brady Handgun Violence Prevention Act'' (Public Law
103-159), which became law in 1993, had two distinct phases.
Phase I required a 5-day waiting period (unless a State had an
exemption) for the purchase of a handgun. Phase II required the
Attorney General to establish, by November 30, 1998, a
national, instant, criminal background check system. Under the
Phase II provisions, the 5-day waiting period would terminate,
and all presale firearms inquiries will be made to a national
computer system, operated by the FBI.
The Brady law also required the Attorney General to
determine the type of computer hardware and software necessary
to develop the national system, to evaluate each State's
criminal history records, and set a timetable by which the
State should be able to provide criminal records on-line. This
role has been delegated to the FBI.
This new gun ban for misdemeanor domestic violence
convictions was added to the list of items in title 18 which a
State must be able to check before a federal firearms licensee
can lawfully sell a gun. In order to comply with the Brady law,
States must now re-develop their computer systems before
November, 1998, so that the systems have the capability to
instantly check for misdemeanor domestic violence convictions.
Several States have raised questions regarding the
implementation of this new law as it impacts on their recently
developed computer systems. Other States do not have access to
all misdemeanor conviction records. For example, some States
destroy the records after a certain period of time, and those
States are concerned about liability if an unlawful purchaser
is inadvertently sold a gun.
Three bills were referred to the Crime Subcommittee. On
January 7, 1997, Representative Bob Barr introduced H.R. 26, to
provide that the firearms prohibitions applicable by reason of
a domestic violence conviction do not apply if the conviction
occurred before the prohibitions became law. On January 9,
1997, Representative Bart Stupak introduced H.R. 445, to
provide that firearms prohibitions applicable by reason of a
domestic violence misdemeanor conviction do not apply to
government entities. On March 11, 1997, Representative Helen
Chenoweth introduced H.R. 1009, to repeal the Lautenberg
amendment completely.
On March 5, 1997, the Subcommittee held a hearing on H.R.
26 and H.R. 445. (H.R. 1009 was not introduced until the
following week.) The Subcommittee heard testimony from Bernard
H. Theodorski, National Vice President, Fraternal Order of
Police; William Johnson, General Counsel, National Association
of Police Organizations; Ronald E. Hampton, Executive Director,
National Black Police Association; Donna F. Edwards, Executive
Director, National Network to End Domestic Violence; Captain R.
Lewis Vass, Records Management Officer, Department of State
Police, Commonwealth of Virginia; Gerald E. Wethington,
Chairman, Systems and Technology Program Advisory, SEARCH, Pete
Gagliardi, Deputy Associate Director, Criminal Enforcement
Programs, Bureau of Alcohol, Tobacco and Firearms; David R.
Loesch, Deputy Assistant Director, Criminal Justice Information
Service Division, Federal Bureau of Investigation. No further
action was taken on either H.R. 26 or H.R. 445 in the 105th
Congress.
Witness Protection and Interstate Relocation Act of 1997
On June 17, 1997, the Subcommittee held a hearing on gang-
related witness intimidation and retaliation. In a growing
number of criminal cases around the United States, police and
prosecutors are unable to investigate and prosecute cases
successfully because key witnesses refuse to provide critical
evidence or to testify because they fear retaliation by
defendants or their associates. This problem has become
particularly acute in gang-related and drug-related criminal
cases. Witnesses' refusal to testify is a major concern because
it undermines the administration of justice while
simultaneously eroding public confidence. Increasingly, there
is an interstate dimension to witness intimidation, with gangs
able to follow witnesses to other States and gangs utilizing
gang members from other states to victimize witnesses. There is
currently no federal law directly addressing the interstate
relocation of witnesses. As such, unless required by state law
or other agreement, programs are under no legal obligation to
notify local law enforcement officials of witnesses with
criminal records who are relocated interstate. The Subcommittee
heard testimony from Charles F. Gallagher III, Deputy District
Attorney, Philadelphia, Pennsylvania; Jennifer Lentz Snyder,
Deputy District Attorney, Los Angles County, California; Sgt.
Ron Stallworth, Gang Intelligence Coordinator, Utah Department
of Public Safety Division of Investigations.
On July 17, 1997, Chairman McCollum introduced H.R. 2181,
the ``Witness Protection and Interstate Relocation Act of
1997.'' H.R. 2181 addresses the problem of gang-related witness
intimidation by establishing a federal offense for traveling in
interstate or foreign commerce with the intent to delay or
influence the testimony of a witness in a State criminal
proceeding by bribery, force, intimidation, or threat, or by
any such means to cause any person to destroy, alter, or
conceal a record, document, or other object, with the intent or
hindering the document's availability for use in such a
proceeding. The bill also establishes enhanced conspiracy
penalties for obstruction of justice offenses involving
victims, witnesses, and informants.
H.R. 2181 addresses the need for coordination among
jurisdictions when a witness is relocated interstate. The bill
directs the Attorney General to survey State and local witness
protection programs to determine the extent and nature of such
programs and the training needs of those programs, and then to
make training available to those programs (the bill authorizes
$500,000 to carry out these initiatives). The Attorney General
is also directed to promote coordination among State and local
witness interstate relocation programs, including by
establishing a model Memorandum of Understanding (MOU) for
States and localities that engage in interstate witness
relocation. This model MOU is to include a requirement that
notice is to be provided to the jurisdiction to which the
relocation has been made in certain cases. The Attorney General
is authorized to make grants under the Byrne discretionary
grant program (section 511 of subpart 2 of part E of the
Omnibus Crime Control and Safe Streets Act of 1968) to those
jurisdictions that have interstate witness relocation programs
that have substantially followed the MOU.
On July 17, 1998, H.R. 2181 was forwarded to the full
Committee. On July 23, 1997, the full Committee held a markup
on H.R. 2181 and ordered the bill favorably reported to the
House by a vote of 20 yeas to 4 nays. On September 18, 1997,
the bill was reported to the House (H. Rept. 105-258). H.R.
2181 passed the House by a vote of 366 yeas to 49 nays, with 1
voting ``present.'' On February 26, 1998, the bill was referred
to the Senate Committee on the Judiciary. No further action was
taken on H.R. 2181 in the 105th Congress.
RICO Reform and Nonviolent Advocacy Groups
In 1986, the National Organization for Women, Inc. filed a
class action lawsuit against several defendants who are anti-
abortion activists. The lawsuit alleged, among other things,
that the defendants had violated the Racketeer Influenced
Corrupt Organizations Act. Passed in 1970 and originally
intended to be used to combat organized crime, the RICO law
makes it a federal crime to commit certain ``prohibited
activities'' involving ``racketeering activity'' or the
collection of an unlawful debt. The law defines ``racketeering
activity'' by setting out a long list of federal crimes which,
under the Act, are deemed to constitute racketeering activity.
These ``predicate acts'' include acts of violent crime, but
principally involve crimes in which violence need not
necessarily occur such as fraud, embezzlement, counterfeiting,
and trafficking in stolen or otherwise contraband items. In
addition to the federal crimes listed, the definition of
racketeering activity also includes certain acts which are
felonies under state law, such as murder, kidnaping, gambling,
arson, bribery, and extortion. The RICO law is uncommon in that
although it is a criminal statute, it also authorizes civil
suits to be brought by private citizens seeking monetary
damages for a violation of the statute.
After two rounds of procedural challenges to the lawsuit,
one of which was ultimately decided by the United States
Supreme Court, the case went to trial. In 1998, the jury
rendered a verdict in favor of the plaintiffs, marking the
first time in which a jury imposed civil liability against an
advocacy group using the RICO law. In response to the requests
of several Members, the Subcommittee held a hearing on the use
of the RICO statute against non-violent advocacy groups on July
17, 1998. The Subcommittee heard testimony from Frank J.
Marine, Acting Chief, Organized Crime and Racketeering Section,
Department of Justice; G. Robert Blakey, Professor of Law,
Notre Dame Law School; Louis Bograd, Senior Staff Attorney,
American Civil Liberties Union; Thomas Brejcha, Pro-Life Law
Center, Chicago, Illinois; Jeff Kerr, General Counsel, People
for the Ethical Treatment of Animals; Eugene Volokh, Professor
of Law, UCLA Law School; Fay Clayton, Robinson, Curley &
Clayton, P.C., Chicago, Illinois; Susan Hill, President,
National Women's Health Organization; Gerald Lynch, Professor
of Law, Columbia Law School; Emily Lyons, Birmingham, Alabama.
Also discussed at the hearing, but not officially
considered by the Subcommittee, was H.R. 4245, the ``Civil RICO
Clarification Act of 1998,'' introduced by Representative John
Shadegg. This bill would amend the RICO law to limit certain
types of civil cases brought under the statute. No further
action was taken on H.R. 4245 in the 105th Congress.
Prohibition on Financial Transactions with Countries Supporting
Terrorism Act of 1997
On February 13, 1997, Chairman McCollum, with
Representative Chuck Schumer, introduced H.R. 748, the
``Prohibition on Financial Transactions with Countries
Supporting Terrorism Act of 1997.'' H.R. 748 expands section
321 of the ``Antiterrorism and Effective Death Penalty Act of
1996,'' by eliminating overly permissive regulations
promulgated by the Administration and the authority to issue
such regulations in the future. It establishes, in place of
regulations, specific exceptions to the prohibition, created by
section 321, on engaging in financial transactions with
countries that have been designated as sponsors of terrorism.
The effect of section 321 is to prohibit financial support
of U.S. persons by terrorist countries and all financial
transactions by U.S. persons with this countries, regardless of
where these transactions take place. The provision also
authorizes the Department of Treasury, in consultation with the
State Department, to make specific exceptions to the ban
through regulations.
In August of 1996, the Treasury Department published
regulations in relation to section 321 which essentially
reversed the effect of the new prohibition. The regulations
permit all financial transactions with terrorist list
governments, except for transactions otherwise prohibited by
law or which pose a risk of furthering domestic terrorism. The
regulations prohibit U.S. persons from receiving unlicenced
donations and from engaging in financial transactions with
respect to which the U.S. person knows or has reasonable cause
to believe that the financial transaction poses a risk of
furthering terrorist acts in the United States.
H.R. 748 strips the executive branch of its authority to
issue regulations exempting transactions from the prohibition.
It establishes instead a legislative exception only for
specified transactions. The list of permitted activities, and
transactions incident thereto, include: routine diplomatic
relations among countries; official acts by representatives of
the U.S. government; news reporting; humanitarian assistance;
emergency medical services; postal and telephone services; the
protection of intellectual property rights; hospitality or
transportation services; the fulfillment of existing contracts;
and payments of claim to U.S. persons.
On June 10, 1997, the Subcommittee held a hearing on H.R.
748, hearing testimony from Kate Almquist, Policy Analyst,
World Vision Relief and Development, Inc.; Mansoor Ijaz,
Chairman, Crescent Investment Management, L.P.; James D.
Latham, Senior Vice President and General Counsel, ITT Sheraton
Corp.; Hillary Mann, Associate Fellow, Washington Institute for
Near East Policy; R. Richard Newcomb, Director, Office of
Foreign Assets Control, Department of the Treasury; William C.
Ramsay, Deputy Assistant Secretary of State for Energy,
Sanctions and Commodities, Bureau of Economic and Business
Affairs, Department of State.
On June 12, 1997, the Subcommittee on Crime held a markup
and H.R. 748 was ordered favorably reported to the full
Committee, amended. On June 18, 1997, the full Committee
considered H.R. 748 and ordered it favorably reported to the
House, amended, with additional Committee amendments. On June
21, 1997, the bill was reported favorably to the House (H.
Rept. 105-141). On July 18, 1997, H.R. 748 passed the House, as
amended, under suspension of the rules, by a vote of 377 yeas
to 33 nays, with one voting ``present.'' On July 9, 1997, H.R.
748 was received in the Senate. No further action was taken on
H.R. 748 in the 105th Congress.
PROTECTING AND SUPPORTING POLICE
Care for Police Survivors Act of 1998
H.R. 3565, the ``Care for Police Survivors Act of 1998,''
amends part L of the Omnibus Crime Control and Safe Streets Act
of 1968 relating to public safety officers' death benefits. It
authorizes the Director of the Bureau of Justice Assistance to
expend not less than $150,000 out of the Public Safety
Officers' Benefits (PSOB) program to maintain and enhance
national peer support and counseling programs to assist
families of public safety officers who have died in the line of
duty. There had been a cap on that funding at $150,000. The
legislation also allows the PSOB office to reduce its current
hearing backlog by authorizing the expenditure of funds for
outside hearing officers. On March 26, 1998, the Subcommittee
on Crime met in open session and considered a committee print
of H.R. 3565, which was introduced later that same day. On
April 1, 1998, the Judiciary Committee met in open session and
ordered reported favorably H.R. 3565 without amendment. On
April 21, 1998, the House passed H.R. 3565 under suspension of
the rules by a vote of 403 to 8. The Senate passed H.R. 3565 on
May 15, 1998, and it was signed by the President on June 16,
1998 (Public Law 105-180).
Bulletproof Vests Partnership Grants Act
H.R. 2829, introduced by Representative Visclosky (D-IN),
establishes a matching grant program to help State and local
jurisdictions purchase armor vests for use by law enforcement
departments. The legislation gives discretionary authority to
the Director of the Bureau of Justice Assistance to award
grants to those departments which have the greatest need, a
mandatory wear policy and a violent crime rate at or above the
national average. At least half of the funds awarded under this
program shall be allocated to units of local government with
fewer than 100,000 residents. H.R. 2829 also prohibits any
State or unit of local government which receives funds made
available by the bill to use equipment or products manufactured
using prison inmate labor. The legislation expresses the sense
of the Congress that entities receiving such funds should
purchase only American-made equipment and goods.
On March 25, 1998, the Subcommittee held a hearing on H.R.
2829, the ``Bulletproof Vest Partnership Grant Act of 1997.''
The Subcommittee heard testimony from Laurie Robinson,
Assistant Attorney General, Office of Justice Programs, U.S.
Department of Justice; Bernard H. Teodorski, Vice President,
National Fraternal Order of Police; Sheriff Stephen O. Simpson,
National Sheriffs' Association.
On May 7, 1998, the Subcommittee on Crime held a markup and
the bill was ordered reported favorably to the full Committee.
The Subcommittee amended the legislation by adding a
requirement that the Director give preferential consideration
to those entities which do not receive funds under the Local
Law Enforcement Block Grants program. Also, all units of local
government which receive such grants are required to certify
that they did not receive sufficient funding for vests under
the Block Grant program. On May 12, 1998, the Committee on the
Judiciary was discharged from further consideration, and the
House passed the bill under suspension of the rules, by a vote
of 412 to 4.
The compromise legislation agreed to by the House and
Senate authorizes to be appropriated $25,000,000 for each of
fiscal years 1999 through 2001. On May 12, 1998, the Senate
companion bill to H.R. 2829, S. 1605, passed the House with an
amendment substituting the language of H.R. 2829, as passed by
the House. The Senate passed S. 1605, as amended by the House
on May 15, 1998, and the President signed the bill into law on
June 16, 1998 (Public Law 105-181).
Police, Fire, and Emergency Officers Educational Assistance Act
H.R. 3046, ``Police, Fire, and Emergency Officers
Educational Assistance Act,'' extends federal educational
assistance benefits to dependants of state and local law
enforcement officers killed or permanently injured in the line
of duty. The Federal Law Enforcement Dependants Assistance
Program costs are estimated to be $515,000 in 1998, including
the estimated number of new survivors. That number includes
$182,000 for 30 federal survivors, plus $333,000 for an
estimated 55 new survivors under the extension this legislation
proposes. The Bureau of Justice Assistance within the
Department of Justice anticipates that this additional funding
for other public safety officers' dependants should not pose
any new difficulties.
On May 15, 1998, the companion bill to H.R. 3046, S. 1525,
the ``Public Safety Officers Educational Assistance Act of
1998,'' passed the Senate. The bill was referred to the House
Judiciary Committee on May 18, 1998, and discharged from the
Committee on October 10, 1998. On October 10, 1998, the bill
passed the House in lieu of H.R. 3046. The Senate agreed to the
House amendment by unanimous consent on October 15, 1998. The
bill was signed by the President on November 13, 1998 (Public
Law 105-390).
Correction Officers Health and Safety Act of 1998
H.R. 2070, the ``Correction Officers Health and Safety Act
of 1997,'' was introduced by Representative Solomon. On March
26, 1998, the Subcommittee held a hearing on H.R. 2070. The
Subcommittee heard testimony from Christopher E. Anders,
Legislative Counsel, American Civil Liberties Union,
Washington, D.C.; Marilyn Wolfe, New York; Michael G. Graney,
Executive Vice President, New York Council 82, American
Federation of State, County, and Municipal Employees;
Correctional Officer John L. Parcell, Corrections and Criminal
Justice Coalition.
As passed by the House, the bill required the testing of
all inmates in the Federal prison system for the HIV virus upon
their arrival in the system. It also required the testing of
any inmate in the Federal penal system when there is reason to
believe that an inmate or a person ordered detained pending
trial may have intentionally or unintentionally transmitted the
HIV virus to any government employee or to any person lawfully
present in a federal correctional facility. The bill allowed
federal employees, should be they involved in the type of
incident with an inmate or detained person in which the HIV
virus could have been transmitted, to request that the inmate
or detained person be tested for the virus. The bill then
required the government to test the person and report the test
results to the employee requesting the test, the person tested,
and the warden of the facility in which the person is
incarcerated or detained.
The need for this type of legislation is simple. Drugs have
now been developed which can prevent the transmission of the
HIV virus after exposure to someone who carries the virus. The
drugs are effective in preventing transmission approximately
80% of the time. However, the drugs must be administered with 2
to 24 hours after exposure and have extremely unpleasant side
effects. If a Bureau of Prisons or Marshals Service employee
were to come in contact with the blood of a inmate, knowing the
HIV status of the inmate will enable the employee and his or
her doctor to make a more informed decision as to whether to
undergo this course of treatment. Unfortunately, some inmates
refuse to be tested when Bureau of Prison officials request.
This bill will require that they be tested.
H.R. 2070 passed the House under suspension of the rules on
August 3, 1998, by voice vote. On October 20, 1998, the Senate
passed the bill by unanimous consent, with an amendment. On
October 21, 1998, the House agreed to the bill as amended by
the Senate. The bill was signed by the President on November
12, 1998 (Public Law 105-370). As enacted, the bill does not
contain the House provision allowing Federal employees to
require that the testing called for in the bill be conducted.
Instead, the bill simply states a general direction to the
Attorney General to test inmates or detained persons who are
involved in incidents with Federal employees or other persons
lawfully present in a correctional facility who are not
incarcerated there where the HIV virus may have been
intentionally or unintentionally passed. The bill as enacted
also did not contain the House provision requiring all persons
incarcerated in Bureau of Prisons facilities to be tested for
the HIV virus. As enacted, the bill only requires testing for
those persons that the Attorney General deems to be at risk for
infection of the virus in accordance with Bureau of Prisons
guidelines.
Rural Law Enforcement Assistance Act
On March 19, 1998, and March 25, 1998, the Subcommittee
held hearings on H.R. 1524, the ``Rural Law Enforcement
Assistance Act of 1997.'' H.R. 1524, introduced by
Representative Asa Hutchinson, authorizes the establishment of
the National Center for Rural Law Enforcement in Little Rock,
Arkansas, as a private, nonprofit corporation in order to
promote rural law enforcement training programs around the
country. On March 19, 1998, the Subcommittee heard testimony
from The Honorable Asa Hutchinson, Third District of Arkansas,
U.S. House of Representatives; The Honorable John Elias
Baldacci, Second District of Maine, U.S. House of
Representatives; Dr. Lee Colwell, Professor and Director,
Criminal Justice Institute, University of Arkansas, Little
Rock, Arkansas; Sheriff Herman Young, Fairfield County
Sheriff's Office, Winnsboro, South Carolina; Mr. Hobart Henson,
Director, Office of State, Local and International Training,
Federal Law Enforcement Training Center, Glynco, Georgia; Chief
Michael Carillo, Deming Police Department, Deming, New Mexico;
Jack Roberts, President, Southern States Benevolent
Association; Sheriff Ted Sexton, Executive Board Member,
National Sheriffs' Association.
On March 25, 1998, the Subcommittee heard testimony from
one witness, Laurie Robinson, Assistant Attorney General,
Office of Justice Programs, U.S. Department of Justice.
No further action was taken on H.R. 1524 in the 105th
Congress.
Interstate Carrying of Concealed Firearms by Law Enforcement Officials
and the Community Protection Act of 1997
Two bills referred to the Subcommittee on Crime in the
105th Congress, H.R. 218 and H.R. 339, would create a national
standard which would allow any police officer, active-duty or
retired in good standing, to carry a concealed firearm into
another State. Both of these bills preempt state laws. Thus,
there would not be any impact on federal laws which restrict
the right to carry firearms.
H.R. 218, the ``Community Protection Act of 1997,'' was
introduced by Representative Cunningham (R-CA) on January 7,
1997. Mr. Cunningham introduced similar legislation in the
104th Congress. H.R. 218 amends chapter 44 of title 18, United
States Code, by creating a new section 926B, ``Carrying of
concealed handguns by qualified current and former law
enforcement officers.'' This legislation would permit any
``qualified'' current or former law enforcement officer who is
carrying appropriate written identification of such status to
carry a concealed handgun. The term ``qualified law enforcement
officer'' is defined to mean a law enforcement officer who is
authorized to carry a firearm, is not subject to disciplinary
action, and meets all agency established requirements with
respect to firearms. A ``qualified former law enforcement
officer'' is defined as an individual who is retired from
service for reasons other than a mental disability, meets State
requirements with respect to firearm training, is not
prohibited by law from receiving a firearm and has a
nonforfeitable right to benefits under the agency retirement
plan. This legislation would apply to any individual authorized
by law to engage in or supervise the detection, prevention,
investigation or prosecution of any violation of law. It
specifically includes corrections, probation, parole and
judicial officers.
H.R. 339 was introduced by Representative Stearns on
January 7, 1997. It provides for a national standard for
nonresidents of a State to carry a concealed firearm, and it
exempts current and former law enforcement officers from State
laws prohibiting the carrying of concealed handguns. H.R. 339
also amends chapter 44 of title 18, United States Code, by
creating a new section 926C, ``Carrying of concealed handguns
by qualified current and former law enforcement officers.''
This legislation applies to qualified current or former law
enforcement officers carrying appropriate identification. The
terms ``qualified current and former officers'' are defined the
same as under H.R. 218. This legislation also specifically
includes corrections, probation, parole and judicial officers.
On July 22, 1997, the Subcommittee held a hearing on H.R.
218 and H.R. 339. The Subcommittee heard testimony from Bernard
H. Teodorski, National Vice President, Fraternal of Police;
Bill Thompson, Director of Governmental Affairs, Southern
States Police Benevolent Association; James A. Rhinebarger,
Chairman, National Troopers Coalition; Officer Ed Nowicki, Twin
Lakes Police Department and Host, ``American Crime Line'' Law
Enforcement Alliance of America; Chief John F. Farrell, Prince
George's County Maryland, Police Executive Research Forum;
Chief Darrell Sanders, President, International Association of
Chiefs of Police; Albert Eisenberg, Commissioner, Arlington
County, Virginia, U.S. Conference of Mayors/National League of
Cities.
On June 19, 1998, the Subcommittee on Crime met in open
session and considered the bill, H.R. 218. The bill was ordered
favorably reported to the full Committee, as amended. The
Subcommittee amended the legislation to include a new section
which would allow private citizens in limited circumstances the
right to carry a concealed firearm into another state. This new
section directed the Attorney General to review all states'
concealed carry laws and compile a list of states which are
``shall-issue'' or ``may-issue'' states for the purposes of
permitting citizens to carry concealed weapons. The Attorney
General was then directed to publish a list of states which had
the same or substantially similar concealed carry laws.
Citizens from one state on the list would be permitted to carry
their lawfully possessed concealed weapon into another state on
the list. On August 5, 1998, the full Committee considered H.R.
218 and ordered the bill favorably reported to the House, as
amended. On October 14, 1998, the bill was ordered reported
favorably to the House (H. Rept. 105-819). No further action
was taken on H.R. 218 in the 105th Congress.
Medal of Valor
H.R. 4090, the ``Public Safety Officer Medal of Valor Act
of 1998,'' establishes a medal, given by the President in the
name of the Congress of the United States, to a public safety
officer who is recognized by the Attorney General for
extraordinary valor above and beyond the call of duty. The
Attorney General is limited to naming not more than six medal
recipients in a given year.
On June 19, 1998, Chairman McCollum introduced H.R. 4090,
the ``Public Safety Medal of Valor,'' which was immediately
forwarded to the full Committee as an original bill. The
legislation creates the Medal of Valor Review Board composed of
eleven members appointed by Congress and the President. The
members of the Review Board, who shall serve 4-year terms,
shall be persons with knowledge or experience in the field of
public safety, including firefighter, law enforcement and
emergency services expertise. Each year, the Board will be
charged with reviewing applications and determining which names
to present to the Attorney General for approval. They may
conduct hearings and take testimony as necessary. The Board
will be staffed by a new office within the Department of
Justice, known as the National Medal Office. The Committee
expects that this office shall consist of a few persons who
will be available to review material, acquire background
information and otherwise assist the Medal of Valor Review
Board.
On May 14, 1998, the Subcommittee held a hearing on
Congressional recognition of acts of exceptional valor by
public safety officers. The Subcommittee heard testimony from
Peter E. Bergin, Acting Principal Deputy Assistant Secretary
and Director of the Diplomatic Security Service, U.S.
Department of State; Donnie R. Marshall, Acting Deputy
Administrator, Drug Enforcement Administration; Richard J.
Gallo, National President, Federal Law Enforcement Officers
Association; Gilbert G. Gallegos, National President, Fraternal
of Police; Robert G. Parry, Communications Director, Local 341
Houston Fire Department, International Association of Fire
Fighters.
On July 16, 1998, the full Committee considered H.R. 4090
and ordered the bill favorably reported to the House, amended.
On July 31, 1998, the bill was reported to the House, as
amended (H. Rept. 105-667). On September 9, 1998, the bill
passed the House under suspension of the rules. The bill was
referred to the Senate Committee of the Judiciary on September
10, 1998. No further action was taken on H.R. 4090 in the 105th
Congress.
Law Enforcement Officers Who Have Died in the Line of Duty Should Be
Honored, Recognized, and Remembered for Their Great Sacrifice
On May 7, 1998, Mr. Burton introduced H. Res. 422,
expressing the sense of the House of Representatives that law
enforcement officers who have died in the line of duty should
be honored, recognized, and remembered for their great
sacrifice. On May 11, 1998, H. Res. 422 was referred to the
Subcommittee on Crime. The Committee on the Judiciary was
discharged from further consideration on May 12, 1998, and H.
Res. 422 was agreed to by the House (416 yeas; 0 nays). No
hearings were held.
PROTECTING THE PUBLIC FROM FRAUD
Cellular Telephone Protection Act
Cellular telephone fraud is a significant criminal activity
in the United States. Each year the wireless telephone industry
loses hundreds of millions of dollars in revenue as the result
of calls made from stolen telephones or cloned telephones. In
1996, the last year for which data is available, the wireless
telephone industry reported that the aggregate loss to the
industry was approximately $710 million.
As significant as is the loss of revenue to the wireless
telephone industry, cellular telephone fraud poses another,
more sinister, crime problem. A significant amount of the
cellular telephone fraud which occurs in this country is
connected with other types of crime. In most cases, criminals
used cloned phones in an effort to evade detection for the
other crimes they are committing. This phenomenon is most
prevalent in drug crimes, where dealers need to be in constant
contact with their sources of supply and confederates on the
street. These criminals often use several cloned phones in a
day, or switch from one cloned phone to another each day, in
order to evade detection. Most significantly, this technique
thwarts law enforcement's efforts to use wiretaps in order to
intercept the criminals'' conversations in which they plan
their illegal activity.
In 1994, Congress passed the Communications Assistance for
Law Enforcement Act (Public Law 103-414) which, in part,
amended 18 U.S.C. Sec. 1029, which concerns fraud and related
activity in connection with access devices. That Act added a
new provision to section 1029 to make it a crime for persons to
knowingly, and with intent to defraud, use, produce, traffic
in, or have custody or control of, or possess a scanning
receiver or hardware or software used for altering or modifying
telecommunications instruments to obtain unauthorized access to
telecommunications services.
On September 11, 1997, the Subcommittee held a hearing on
Cellular Telephone Fraud. The Subcommittee heard testimony from
Michael C. Stenger, Special Agent in Charge, Financial Crimes
Division, United States Secret Service; John Navarrete, Deputy
Assistant Director, Federal Bureau of Investigation; Anthony R.
Bocchichio, Assistant Administrator, Operational Support
Division, Drug Enforcement Agency; Thomas E. Wheeler, President
and CEO, Cellular Telecommunications Industry Association; John
Marinho, Telecommunications Industry Association.
Law enforcement officials have testified before the
Subcommittee that it is often hard to prove the intent to
defraud aspect of this section with respect to the possession
of hardware or software used for altering or modifying
telecommunications instruments to obtain unauthorized access to
telecommunications services. In the most common case, law
enforcement officials will arrest criminals for other crimes
and find telephone cloning equipment in the possession of the
criminals. Without finding specific evidence that the criminals
intended to use this equipment to clone cellular telephones,
law enforcement officials often have been thwarted in an effort
to prove a violation of this statute. But because there is no
legitimate reason why any person not working for wireless
telephone industry carriers would possess this equipment, there
is no question that these criminals intended to use that
equipment to clone cellular telephones. Law enforcement
officials informed the Subcommittee that deleting the ``intent
to defraud'' requirement from section 1029(a)(8) with respect
to this equipment would enable the government to punish a
person who merely possesses this equipment, as well as those
who produce, traffic in, or have custody or control over it.
Generally speaking, while Congress is hesitant to
criminalize the mere possession of technology without requiring
proof of an intent to use it for an improper purpose, the
testimony before the Subcommittee on Crime, both by law
enforcement agencies and representatives of the wireless
telephone industry, confirms that the only use for this type of
equipment, other than by persons employed in the wireless
telephone industry and law enforcement, is to clone cellular
telephones. Although wireless telecommunications companies use
this equipment to test the operation of legitimate cellular
telephones, to test the anti-fraud technologies their companies
employ to thwart the use of cloned telephones, and in other
ways to protect their property and legal rights, the equipment
has no other legitimate purpose. Thus, there is no legitimate
reason for any other person to possess this equipment.
Representative Sam Johnson introduced H.R. 2460, the
``Wireless Telephone Protection Act.'' The bill amended
existing law by deleting the intent to defraud requirement
currently found in section 1029(a)(8). The bill also clarifies
the penalties which may be imposed for violations of section
1029. Under existing law, violations of subsections (a)(5),
(6), (7), or (8) were subject to a maximum penalty of 10 years
under section 1029(c)(1). However, these same violations also
were subject to a maximum penalty of 15 years under subsection
(c)(2) of that same section. The bill corrected this problem by
restating the punishment section of section 1029 to more
clearly state the maximum punishment for violations of each
paragraph of section 1029(a).
In order to ensure that telecommunications companies may
continue to use these devices, the bill provides that it is not
a violation of new subsection (a)(9) for an officer, employee,
or agent of, or a person doing business with, a facilities-
based carrier to use, produce, have custody or control of, or
possess hardware or software as described in that subsection if
they are doing so for the purpose of protecting the property of
or legal rights of that carrier. The bill also defines
``facilities-based carrier'' in order to make it clear that the
exception to new subsection (a)(9) is only available to
officers, employees, or agents of, or persons doing business
with, companies that actually own communications transmission
facilities, and persons under contract with those companies,
because only those persons have a legitimate reason to use this
property to test the operation of and perform maintenance on
those facilities, or otherwise to protect the property or legal
rights of the carrier.
The bill also amends the definition of scanning receiver
presently found in subsection (e)(8) of section 1029 to that
definition to ensure that the term ``scanning receiver'' will
be understood to also include devices which intercept
electronic serial numbers, mobile identification numbers, or
other identifiers of telecommunications service, equipment, or
instruments. Finally, the bill provides direction to the United
States Sentencing Commission to review and amend, if
appropriate, its guidelines and policy statements so as to
provide an appropriate penalty for offenses involving cloning
of wireless telephones. The bill states eight factors which the
Commission is to consider in reviewing existing guidelines and
policy statements.
On October 9, 1997, the Subcommittee met in open session
and considered the bill, H.R. 2460, and ordered it reported
favorably to the full Committee. On October 29, 1997, the full
Committee considered the bill and ordered it reported favorably
to the House. On February 24, 1998, the bill was reported to
the House with a technical amendment (H. Rept. 105-418). H.R.
2460 passed the House, with a floor amendment in the nature of
a substitute, by a vote of 414 yeas to 1 nay, on February 26,
1998. Immediately after the passage of H.R. 2460, the House
considered S. 493, the Senate companion bill to H.R. 2460
passing the Senate bill with an amendment, substituting the
language of H.R. 2460 as passed by the House for the text of S.
493. On April 1, 1997, the Senate agreed to the House
amendment. S. 493 was signed by the President on April 24, 1997
(Public Law105-172).
Clone Pager Authorization Act of 1996
On January 21, 997, Senator DeWine introduced S. 170, a
bill to provide for a process to authorize the use of clone
pagers, and for other purposes. On September 18, 1997, this
bill was reported to the Senate by the Committee on the
Judiciary with no written report. S. 170 passed the Senate on
November 7, 1997. On November 18, 1997, the bill was referred
to the House Committee on the Judiciary and ordered reported to
the House Judiciary Committee by the Subcommittee on Crime on
May 7, 1998. No hearings were held and no report was filed. No
further action was taken on S. 170 in the 105th Congress.
Telemarketing Fraud Prevention
In the 104th Congress, the House of Representatives passed
the ``Telemarketing Fraud Prevention Act.'' The Senate failed
to act on that legislation, and Representative Goodlatte
introduced identical legislation, H.R. 1847, in the 105th
Congress on June 10, 1997. The legislation directs the U.S.
Sentencing Commission to increase penalties for persons who
commit telemarketing fraud. The bill also allows for forfeiture
of any real or personal property used, constituting or derived
from the commission of the fraudulent offense.
On June 12, 1997, the Subcommittee held a markup and
considered H.R. 1847, the ``Telemarketing Fraud Prevention Act
of 1997.'' The bill was ordered favorably reported to the full
Committee. On June 18, 1997, the full Committee considered the
bill and it was ordered favorably reported to the House. On
June 26, 1997, the bill was reported to the House (H. Rept.
105-158). H.R. 1847 passed the House on July 8, 1997.
On November 9, 1997, H.R. 1847 passed the Senate, as
amended, with additional floor amendments. The Senate amendment
struck the specific penalty enhancements directed by the House
to the U.S. Sentencing Commission. Instead, the Senate bill
directed the Commission to review the guidelines to ensure that
penalties were appropriately severe. The House agreed to the
Senate amendment on June 18, 1997, by a vote of 411 yeas and 1
nay. On June 23, 1997, H.R. 1847, the ``Telemarketing Fraud
Prevention Act of 1997'' was signed by the President (Public
Law 105-184).
Identify Theft and Assumption Deterrence Act
H.R. 4151, the ``Identity Theft and Assumption Deterrence
Act of 1998,'' introduced by Representative John Shadegg,
amends the fraud chapter of title 18 of the United States Code
to create a new crime prohibiting the unlawful use of personal
identifying information--such as names, social security
numbers, and credit card numbers. Identity fraud involves the
misappropriation of another person's personal identifying
information. Criminals use this information to establish credit
in their name, run up debts on another person's account, or
take over existing financial accounts. According to a 1998 GAO
study, the consequences of this crime are enormous. One
national credit union reported that two-thirds of the 500,000
annual consumer inquiries it receives involve identity fraud.
MasterCard has reported that its member banks lose almost $400
million annually to identity theft. The Secret Service, which
investigates only a small portion of identify theft cases under
the existing wire and mail fraud statutes, reported that the
cases it investigated in 1997 involved over $745 million in
losses.
Unfortunately, only a portion of identify fraud cases are
investigated and prosecuted. At present, while the use of false
identity documents is a crime, the gathering, use, and sale of
personal identifying information is not. Because of this gap in
the law, law enforcement agencies can only investigate the
fraud that occurs after stolen identity information is used.
And as many of these individual crimes involve relatively small
amounts, they often are too small to justify the use of
valuable investigative and prosecutorial resources.
H.R. 4151 gives law enforcement agencies the authority to
investigate these crimes. It amends section 1029 of title 18 to
make it a crime to unlawfully transfer or use a means of
personal identification. But only an unlawful use or transfer
is prohibited. The statute will still allow banks, credit card
companies, and credit bureaus to conduct their business as they
always have. The bill also requires the United States
Sentencing Commission to review and amend the Federal
sentencing guidelines and the policy statements of the
Commission, as appropriate, for each offense under section 1028
of title 18, United States Code, as amended by the bill.
Further, the bill requires the Federal Trade Commission to
establish a centralized complaint center which will log and
acknowledge the receipt of complaints by individuals who
certify that they have a reasonable belief that one or more of
their means of identification have been assumed, stolen, or
otherwise unlawfully acquired in violation law.
Finally, the bill was amended on the floor of the House to
add a provision amending the ``Ethics in Government Act of
1998.'' As amended by H.R. 4151, the Act will allow for the
redaction of portions of the annual financial reports filed by
Federal judges under the Act prior to their release to the
public after a request is made for their release if a finding
is made by the Judicial Conference of the United States, in
consultation with United States Marshal Service, that revealing
personal and sensitive information could endanger that
individual.
The House passed the bill under suspension of the rules on
October 7, 1998. The Senate passed the bill on October 14,
1998, by unanimous consent. The President signed the bill into
law on October 30, 1998 (Public Law 105-318).
CARING FOR VICTIMS
Crime Victims with Disabilities Awareness Act
Research in foreign countries has found that persons with
developmental disabilities are at a 4 to 10 times higher risk
of becoming crime victims than those without disabilities.
Studies in Canada, Australia, and Great Britain consistently
show that crime victims with disabilities suffer repeated
victimization, often because so few of the crimes against them
are reported. We know little about the nature of crimes against
individuals with disabilities in the United States. Nationally,
data is not collected on crimes against such persons and no
significant studies have been conducted on this issue in the
United States.
On July 13, 1998, the Senate passed the bill, S. 1976, the
``Crime Victims with Disabilities Awareness Act'' by unanimous
consent. S. 1976 directs the Attorney General to conduct a
study on crime victims with disabilities to learn the nature
and extent of this problem. S. 1976 also directs the Attorney
General to include crime victims with developmental
disabilities in the National Crime Victims Survey in order to
begin quantifying the number of crimes against such persons
here in the United States.
On September 11, 1998, the House Subcommittee on Crime met
in open session and considered S. 1976. On September 14, 1998,
the Subcommittee ordered the bill reported favorably to the
full Committee. On October 7, 1998, the Committee on the
Judiciary was discharged from further consideration and S. 1976
passed the House under suspension of the rules. S. 1976 was
signed by the President on October 27, 1998 (Public Law 105-
301).
Victims Rights Clarification Act
In recent years, the public has come to demand that its
elected leaders take a greater interest in the concerns of
victims of crime. Congress has responded to this demand in a
number of ways. In 1990, Congress passed a provision requiring
federal government employees involved in the detection,
investigation, and prosecution of crime to make their best
efforts to see that victims of crime were accorded a number of
rights, including the right to be treated with fairness and
with respect for the victims' dignity and privacy, the right to
be reasonably protected from the accused offender, the right to
be notified of court proceedings, the right to confer with the
attorney for the government in the case, and the right to
information about the conviction, sentencing, imprisonment and
release of the offender. See Public Law 101-647, codified at 42
U.S.C. Sec. 10606. That Act also provided for two other
important rights to be accorded victims: the right to
restitution, and the right to be present at all public court
proceedings related to the offense. Since 1990, Congress has
enacted several measures to further this intent.
In 1996, Congress enacted Public Law 104-132, the ``Anti-
Terrorism and Effective Death Penalty Act of l996.'' Title II
of that Act made significant amendments to the restitution
provisions of the United States Code to require, in large part,
that federal courts order persons convicted of violent crimes,
and specified other crimes, to make restitution to the victims
of their crimes.
In 1994, Congress amended the Federal Rules of Criminal
Procedure to provide that a victim would have the right to make
a statement to the court in a non-capital case, at the time of
sentencing, in order to better ensure that the interests of
victims of crime would be known to sentencing judges. Also in
that year, Congress authorized the government, after a guilty
verdict is returned in a capital case, to call victims and
victims' family members to testify during the post-verdict
sentencing hearing. This testimony may be in connection with
any aggravating factors that the government wishes to prove, or
to rebut evidence of mitigating factors that the convicted
defendant is attempting to prove. This so-called ``victim
impact'' testimony often describes the effect of the crime on
the victim or the victim's family. The Supreme Court has upheld
the government's right to present victim impact testimony
against constitutional challenge.
In United States v. Timothy McVeigh, one of the criminal
trials arising from the bombing of the Federal Building in
Oklahoma City in 1995, the presiding judge ruled that some
victims and victims'' family members would be precluded from
attending the guilt-phase of a criminal trial because these
persons intend to make victim impact statements during the
sentencing phase of the trial. While Federal Rule of Evidence
615 does authorize judges to exclude fact witnesses from trial,
this rule was formulated primarily to guard against potential
fact witnesses changing their testimony based on the testimony
of other fact witnesses they might hear at trial. The situation
in the McVeigh case did not involve the testimony of fact
witnesses but rather statements and other testimony presented
by victims as to the impact of the offenders' crimes on them
personally. As such, the risk that their testimony might
somehow be tainted by evidence presented during the guilt phase
of a trial was minimal.
To ensure that the ruling in the McVeigh case would not be
relayed upon in other cases, Representative Bill McCollum
introduced H.R. 924, the ``Victim Rights Clarification Act of
1997,'' which provides that a victim may not be excluded from a
criminal trial in federal court solely because of the fact that
the victim may or will make a statement as to the impact of the
crime on them or their family in accordance with existing law.
The bill does not prevent judges from separating victims who
will also be fact witnesses during the guilt phase of the trial
if the court determines that their fact testimony would be
materially affected by hearing other fact testimony at trial.
See 42 U.S.C. Sec. 10606(b)(4). Nor does the bill affect a
judge's authority to manage his or her courtroom in accordance
with other statutes and court rules. As such the bill strikes a
balance between the goal of ensuring that fact testimony is not
tainted by other testimony at trial and the goal that, when
appropriate, every opportunity is given to victims to witness
first hand that our system is providing justice for them.
On March 6, 1997, the Subcommittee on Crime met in open
session considered H.R. 924 and ordered it reported favorably
to the full Committee. The full Committee considered the bill
on March 12, 1997, and ordered it reported favorably to the
House (H. Rept. 105-28). On March 18, 1997, the House
considered the bill under suspension of the rules and passed
the bill by a vote of 418 yeas to 9 nays. On March 19, 1997,
the Senate passed the bill by unanimous consent. The President
signed the bill into law on March 19, 1997 (Public Law 105-6).
Traffic Stops Statistics Act of 1997
H.R. 118, the ``Traffic Stops Statistics Act of 1997,''
requires the Attorney General to conduct a study by acquiring
data from law enforcement agencies regarding the
characteristics of those stopped for alleged traffic violations
and the rationale for any subsequent searches resulting from
those violations. The Attorney General is directed to issue a
report to Congress in 2 years which would set forth the
findings of the study.
This bill will discourage law enforcement officers from
using race as the primary factor in making determinations as to
whether to institute a car search and will provide statistical
data as to the nature and extent of the problem of African-
Americans being targeted for traffic stops. H.R. 118, will also
identify the benefits of traffic stops to fight crime by
including information on the type of contraband seized, the
quantity of drugs and the value of drug proceeds seized
pursuant to a routine traffic stop.
On February 26, 1998, the Subcommittee on Crime was
discharged from further consideration. On March 3, 1998, the
Judiciary Committee held a markup. On March 4, 1998, H.R. 118
was ordered reported to the House with an amendment that would
include in the study statistics on the approximate quantity of
drugs and the value of drug proceeds seized on an annual basis
as a result of the traffic stops. On March 11, 1998, the bill
was reported, as amended, to the House (H. Rept. 105-435). H.R.
118, passed the House, as amended, and referred to the Senate
Committee on the Judiciary on March 25, 1998. No further action
was taken on H.R. 118 in the 105th Congress.
Title I of the Omnibus Crime Control and Safe Streets Act of 1968
H.R. 804 is a bill to amend part Q of title I of the
Omnibus Crime Control and Safe Streets Act of 1968 to ensure
that Federal Funds made available to hire or rehire law
enforcement officers are used in a manner that produces a net
gain of the number of law enforcement officers who perform
nonadministrative public safety services.
On September 11, 1998, H.R. 804 was marked-up by the
Subcommittee on Crime. On September 14, 1998, the bill was
ordered reported to the Judiciary Committee. The Committee on
the Judiciary was discharged from further consideration on
October 7, 1998. H.R. 804 passed the House on October 7, 1998,
and was received in the Senate on October 8, 1998.
INTERNET GAMBLING
During the 105th Congress, the Subcommittee held two
hearings on the subject of Internet gambling. On February 4,
1998, and June 24, 1998, the Subcommittee held hearings on H.R.
2380, the ``Internet Gambling Prohibition Act of 1997.'' On
February 4, 1998, the Subcommittee heard testimony from Frank
Fahrenkopf, Jr., President and CEO, American Gaming
Association; Douglas Donn, Director, National Thoroughbred
Racing Association; William S. Saum, Gambling and Agent
Representative, National Collegiate Athletics Association;
Frank Miller, Past President, North American Gaming Regulators
Association; Sue Schneider, Chairperson, Interactive Gaming
Council and Managing Editor, Rolling Good Times OnLine; Bernie
Horn, Director of Political Affairs, National Coalition Against
Legalized Gambling/National Coalition Against Gambling
Expansion.
On June 24, 1998, the Subcommittee heard testimony from
Kevin DiGregory, Deputy Assistant Attorney General, Criminal
Division, U.S. Department of Justice; David Jemmet, President,
WinStar GoodNet and Commercial Internet Exchange Association
(CIX); Marianne McGettigan, Counsel, Major League Baseball
Players Association; David Matheson, Chief Executive Officer of
Gaming, Couer d'Alene Tribe.
One month after the first hearing, on March 5, 1998, the
United States Attorney for the Southern District of New York
indicted 14 owners and managers of six Internet sports betting
companies headquartered in the Caribbean and Central America.
The six companies were: Galaxy Sports in Curacao; Island Casino
in Curacao; Real Casino in Costa Rica; SDB Global Casino in
Costa Rica; Winner's Way in the Dominican Republic; and World
Sports Exchange in Antigua. Significantly, all of the
defendants are United States citizens who moved to a foreign
location to operate their web sites.
All defendants were charged with conspiracy to transmit
bets and wagers on sporting events via the Internet and
telephones. The six separate complaints charged the defendants
with owning and/or operating sports betting businesses that
illegally accept wagers on sporting events over the Internet
and telephones. These complaints represented the first federal
prosecutions of sports betting over the Internet.
Although the gambling operations were legal in the
countries where they were being operated, the relevant facts,
according to United States Attorney Mary Jo White, were that
all of the companies advertised and promoted their betting
sites with the goal of obtaining wagers from U.S. customers via
the Internet. They all used the U.S. mails; they advertised in
U.S. publications and some maintained marketing offices on U.S.
soil. United States Attorney General Janet Reno issued a
statement saying, ``Federal law clearly prohibits anyone
engaged in the business of betting or wagering from using
interstate and international wire communications, including the
Internet and telephones, in connection with betting on sports
events. Criminals cannot avoid responsibility for federal
crimes by seeking refuge in offshore locations.'' Lawyers for
the defendants continue to argue that their clients have
licenses to operate an on-line betting site by the countries
where the businesses are located, and that the United States
does not have jurisdiction to prosecute such companies.
Three weeks later the Department of Justice charged an
additional seven owners, managers and employees of five
Caribbean-based sports betting companies with conspiracy. As
with the initial charges, undercover federal agents opened
accounts with the on-line betting sites and used the Internet
and telephone lines to place bets. The cases were filed in
federal court in New York, and the investigations are
continuing. These activities by the Federal Government
necessitated the second hearing.
Additionally, there are several Indian tribes which operate
casinos on tribal lands, and many of these casinos are
extremely lucrative for the tribes. Some tribes have expressed
interest in augmenting their gambling revenue by operating on-
line gambling web sites. Also, many news web sites also operate
a rotisserie sports game on the Internet, which are also known
as fantasy sports leagues. For example, CBS and ESPN both have
web pages with several fantasy sports games--baseball,
football, golf, etc. In order to play, one simply logs onto the
web page and purchases a team for a set fee. The player
provides a credit card number to enter the ``draft,'' and then
picks a team from the names of the players in a particular
league. The grand prize on the ESPN baseball site is an all-
expenses paid trip to spring training in Florida. Other prizes
include jackets, hats, and plastic miniature baseball bats.
These organizations dispute the contention that their games
fall within the definition of gambling. They also argue that
fantasy leagues involve skill, such as keeping track of a
player's statistics and making player trades with other
participants.
On September 14, 1998, the Subcommittee on Crime considered
H.R. 4427 and the bill was ordered reported favorably to the
full Committee. No further action was taken on H.R. 4427 in the
105th Congress.
DEPARTMENT OF JUSTICE
Federal Prisons of Industries
On October 30, 1997, the Subcommittee held a hearing on
options for improving and expanding cooperation between Federal
Prison Industries and the private sector. The Subcommittee
heard testimony from Steve Schwalb, Assistant Director, Federal
Bureau of Prisons; Michael N. Harrell, General Manager of News
Business Development, PRIDE Enterprises; Robert Sanders,
Division of Industries, South Carolina Department of
Corrections; Kenneth L. Mellem, President and CEO, Geonex
Corporation, Morgan O. Reynolds, National Center for Policy
Analysis; Ann F. Hoffman, Legislative Director, Union of
Needletrades, Industrial and Textile Employees; V. James
Adduci, II, American Apparel Manufacturers Association; Donald
G. Heeringa, President, BIFMA International; Stephen M. Ryan,
Quarters Furniture Manufacturers Association.
On June 25, 1998, the Subcommittee held a hearing on H.R.
4100, the ``Free Market Prison Industries Reform Act of 1998''
and H.R. 2758, the ``Federal Prison Industries Competition in
Contracting Act of 1997.'' The Subcommittee heard testimony
from Kathleen Hawk Sawyer, Director, Bureau of Prisons; Steve
Schwalb, Assistant Director, Bureau of Prisons; Morgan
Reynolds, Professor of Economics, Texas A&M; Michael J.
Sullivan, Secretary of the Department of Corrections, State of
Wisconsin; Knut Rostad, The Enterprise Prison Institute; Len
Lorey, Kimball International; David A. Smith, Director of
Public Policy, AFL-CIO; Larry Martin, President, American
Apparel Manufacturers Association. Both of these bills address
the operation of Federal Prison Industries (FPI), a
correctional program operated by the Bureau of Prisons (BOP).
Representative McCollum introduced H.R. 4100, the ``Free
Market Prison Industries Reform Act'' on June 19, 1998. Under
this legislation, the private sector will be encouraged to
participate whole scale in federal prison industry programs.
The bill requires the BOP to invite private companies to bid
for the right to operate a federal prison industry program at
all new federal prisons. Contracts will be awarded based on the
benefit to the government in terms of revenue produced and
number of inmate employed. From the amount that a private
business pays to the government for the right to operate a
prison industry will be made payments as wages to the inmates
working in the industry. Amounts will be deducted from those
wages to pay victim restitution, support to the inmates'
families, and the cost of room and board.
Under the bill, the BOP will also be required to begin
offering existing prison industries to the private sector to be
operated in the same way as the industries at new prison
facilities. Until private companies can be found to run
existing industries, however, FPI will be authorized to
continue to operate the industry, but for the first time, will
authorized to sell the goods made there on the open market, to
other companies or directly to consumers. Regardless of whether
the industry is operated by a private person or by the BOP, if
the goods made there are sold on the open market, the bill will
repeal the ``mandatory source preference'' that requires the
federal government to purchase goods made in prison industries.
The bill also lifts federal restrictions on the interstate
transportation of goods made in state prison industry programs.
As a result of these changes, states may also invite private
companies to operate their prison industry programs, or may
choose to operate the industries itself, and sell the goods
made there in the open market. States wishing to take advantage
of this provision, however, would be required to give up their
reliance on any provision that requires state agencies in that
state to buy goods from the state prison industry program.
H.R. 2758, introduced by Representative Peter Hoekstra,
would immediately eliminate the mandatory source preference
currently used by FPI. In return, it would require all Federal
agencies to solicit an offer from FPI when making a purchase of
goods or services offered for sale by FPI. The bill would
continue to limit FPI to selling goods or services only to the
Federal government. The bill would also limit the authority of
FPI to offer for sale a new product or to increase the quantity
offered for sale of an existing product.
No further action was taken on H.R. 4100 and H.R. 2758 in
the 105th Congress.
Prisoner Service Opportunity Act of 1997
On March 5, 1997, Mr. McCollum introduced H.R. 926, the
``Prisoner Service Opportunity Act of 1997.'' On March 6, 1997,
H.R. 926 was ordered reported to the full Committee by the
Subcommittee on Crime. No further action was taken on H.R. 926
in the 105th Congress.
United States Marshals Service Improvement Act of 1997
On March 5, 1997, Mr. McCollum introduced H.R. 927, the
``United States Marshals Service Improvement Act of 1997.''
This bill will change the selection process of United States
Marshals from that of appointment by the President with the
advice and consent of the Senate, to appointment by the
Attorney General. United States Marshals will be selected on a
competitive basis from among the career managers within the
Marshals Service.
Incumbent U.S. Marshals, selected before enactment of H.R.
927, will continue to perform the duties of their office until
their terms expire and successors are appointed. Marshals
selected between the enactment of this bill and December 31,
1999, will still be appointed by the President, with the advice
and consent of the Senate. They will serve a 4-year term,
unless they resign or are removed by the President.
On March 6, 1997, H.R. 927 was ordered reported to the
Judiciary Committee by the Subcommittee on Crime. On March 17,
1997, the bill was reported to the House (H. Rept. 105-27) and
passed the House on March 18, 1997. On March 19, 1997, H.R. 927
was referred to the Senate Committee on the Judiciary. On March
26, 1998, the bill was reported favorably to the Senate with an
amendment by Senator Hatch. No written report was filed in the
Senate.
Private Security Officer Quality Assurance Act of 1997
H.R. 103, the ``Private Security Officer Quality Assurance
Act of 1997,'' establishes a procedure for expediting
background checks of private security officers. The bill
requires the Attorney General to designate and associate the
employers of private security officers to submit applicant
fingerprints to the Attorney General for the purpose of
background checks. The Attorney General is expected to
designate responsibility for conducting the background checks
to the Federal Bureau of Investigation.
H.R. 103 further requires the Attorney General to report to
the House and Senate Judiciary Committee 2 years after
enactment on the number of inquiries made by the association
established under the bill and disposition of those inquiries.
The legislation also expressed the sense of Congress that
States should participate in the background check system.
On January 7, 1997, H.R. 103 was introduced by Bob Barr and
was referred to the Committee on Education and the Workforce;
and the Committee on the Judiciary. On June 12, 1997, the bill
was ordered reported to the Judiciary Committee by the
Subcommittee on Crime. H.R. 103 was ordered reported to the
House on June 26, 1997, by the Committee on the Judiciary (H.
Rept. 105-161, part 1). The Committee on Education and the
Workforce was discharged from further consideration on July 28,
1997. The bill passed the House on July 28, 1997, and was
referred to the Senate Committee on the Judiciary on September
11, 1997. No hearings were held on H.R. 103. No further action
was taken on H.R. 103 in the 105th Congress.
To Limit the Jurisdiction of the Federal Courts with Respect to Prison
Release Orders
On April 23, 1998, Mr. DeLay introduced H.R. 3718, a bill
to limit the jurisdiction of the Federal courts with respect to
prison release orders. H.R. 3718 was referred to the
Subcommittee on Crime on May 11, 1998. The Committee on the
Judiciary was discharged from further consideration on May 19,
1998, and the bill passed the House by a vote of 325 yeas to 53
nays. H.R. 3718 was referred to the Senate Committee on the
Judiciary on May 20, 1998. No further action was taken on H.R.
3718 in the 105th Congress.
GENERAL OVERSIGHT AND OTHER SUBCOMMITTEE HEARINGS
FBI Oversight
On February 12, 1997, the Subcommittee held a hearing on
the Federal Bureau of Investigation investigation into the
Khobar Towers bombing in Dhahran, Saudi Arabia and the foreign
investigative activities of the FBI in general. The
Subcommittee heard testimony from Robert Bryant, Assistant
Director, National Security Division, Federal Bureau of
Investigation, Department of Justice, accompanied by Allen
Ringgold, Deputy Assistant Director.
On May 13, 1997, the Subcommittee held a hearing on the
activities of the Federal Bureau of Investigation, Part I. The
Subcommittee heard testimony from Fredric Whitehurst,
Supervisory Special Agent, Federal Bureau of Investigation;
Daniel S. Alcorn, Counsel, National Association of Criminal
Defense Lawyers; Michael R. Bromwich, Inspector General,
Department of Justice; Donald Thompson, Acting Assistant
Director, Federal Bureau of Investigation; James Maddock,
Deputy General Counsel, Federal Bureau of Investigation; Kevin
Lothridge, President, American Society of Crime Laboratory
Directors.
On June 5, 1997, the Subcommittee held a hearing on the
activities of the Federal Bureau of Investigation, Part II. The
Subcommittee heard testimony from Louis J. Freeh, Director,
Federal Bureau of Investigation.
On July 30, 1997, the Subcommittee held a hearing on the
activities of the Federal Bureau of Investigation, Part III.
The Subcommittee heard testimony from Richard Jewell; Albert
Alschuler, Professor of Law, University of Chicago; Michael
Shaheen, Jr., Director, Office of Professional Responsibility,
Department of Justice; Robert Bryant, Assistant Director,
Federal Bureau of Investigation; Woody Johnson, Special Agent
in Charge, Atlanta Regional Office, Federal Bureau of
Investigation.
On June 11, 1998, the Subcommittee held a hearing on the
Federal Bureau of Investigation's implementation of a national
instant-check system for screening prospective gun buyers. The
Subcommittee heard testimony from James E. Kessler, Jr.,
Section Chief, Operations Branch, Criminal Justice Information
Services Division, Federal Bureau of Investigation; Dr. Jan M.
Chaiken, Director, Bureau of Justice Statistics, U.S.
Department of Justice; Tanya K. Metaksa, Executive Director,
National Rifle Association of America; Grover G. Norquist,
President, Americans for Tax Reform; James J. Baker, Washington
Representative, Sporting Arms & Ammunition Manufacturers
Institute; Lt. Col. Cynthia Smith, Bureau Chief of Drug and
Criminal Enforcement, Maryland State Police; Lt. Robert G.
Kemmler, Assistant Records Management Officer, Virginia
Firearms Transaction Program, Virginia Department of State
Police.
Implementation of the Communications Assistance for Law Enforcement Act
of 1994
On October 23, 1997, the Subcommittee held a hearing on the
implementation of the Communications Assistance for Law
Enforcement Act of 1994 (CALEA) (Public Law 103-414). CALEA was
signed into law by President Clinton on October 25, 1994
(Public Law 103-414, codified at 47 U.S.C. Sec. 1001 et seq.).
The purpose of the Act is to ``preserve the government's
ability, pursuant to court order or other lawful authorization,
to intercept communications involving advanced technologies
such as digital or wireless transmission modes, or features and
services such as call forwarding, speed dialing, and conference
calling, while protecting the privacy of communications and
without impeding the introduction of new technologies,
features, and services.''
The Act places four requirements on telecommunications
carriers. First, carriers are expected to expeditiously isolate
and enable the government to intercept all wire and electronic
communications within a carrier's service area. Second,
carriers are required to expeditiously isolate and enable the
government to access call identifying information that is
reasonably available to the carrier both before, during, or
immediately after the transmission of the communication. Third,
carriers are required to provide intercepted communications and
call identifying information to the government in a format that
the government can use. Finally, the Act requires carriers to
intercept the communication or access to the call identifying
information unobtrusively, with a minimum of interference to
any subscriber's service, and in a manner that protects the
privacy and security of any communications and call identifying
information not authorized to be intercepted.
In addition to the requirements placed on
telecommunications carriers, the Act specifies that law
enforcement is not authorized to require any specific design of
equipment, facilities, services, features, or system
configurations nor can the government prohibit the adoption of
any equipment, facilities, service, or feature by any provider
or manufacturer.
The purpose of the hearing was to determine if the extent
of cooperation between the telecommunications industry and the
government in implementing the Act, to determine when the Act
might be fully implemented, and to ascertain whether further
legislation is required to ensure that the intent of the 1994
law was carried out. The Subcommittee heard testimony from
Thomas E. Wheeler, President, Cellular Telecommunications
Industry Association; Jay Kitchen, President, Personal
Communications Industry Association; Matthew J. Flanigan,
President, Telecommunications Industry Association; Roy M.
Neel, President, United States Telephone Association; James X.
Dempsey, Senior Staff Counsel, Center for Democracy and
Technology; Edward L. Allen, Chief, Electronic Surveillance
Technology Section, Information Resources Division, Federal
Bureau of Investigation; H. Michael Warren, Chief, CALEA
Implementation Section, Information Resources Division, Federal
Bureau of Investigation.
Ecoterrorism
On June 9, 1998, the Subcommittee held a hearing on
ecoterrorism committed by radical environmental organizations.
The Subcommittee heard testimony from The Honorable Frank
Riggs, First District of California, U.S. House of
Representatives; Ron Arnold, author, Ecoterror: The Violent
Agenda to Save Nature; Bruce Vincent, President, Alliance for
America; Barry Clausen, author, Walking on the Edge: How I
Infiltrated Earth First!; Julie Rodges, District Office
Manager, The Honorable Frank Riggs, Eureka, California; Cathi
Peterson, former Forest Service Employee, Northern California.
SUBCOMMITTEE ON COMMERCIAL AND ADMINISTRATIVE LAW
GEORGE W. GEKAS, Pennsylvania,
Chairman
JERROLD NADLER, New York STEVEN SCHIFF, New Mexico \1\
SHEILA JACKSON LEE, Texas LAMAR S. SMITH, Texas
MARTIN T. MEEHAN, Massachusetts BOB INGLIS, South Carolina
WILLIAM D. DELAHUNT, Massachusetts ED BRYANT, Tennessee
STEVE CHABOT, Ohio
LINDSEY O. GRAHAM, South Carolina
\2\
----------
\1\ Steven Schiff, New Mexico, deceased March 25, 1998.
\2\ Lindsey O. Graham, South Carolina, assigned March 3, 1998, to
fill the vacancy resulting from the illness of Steven Schiff, New
Mexico.
Tabulation of subcommittee legislation and activity
Legislation referred to the Subcommittee.......................... 78
Legislation reported favorably to the full Committee.............. 16
Legislation reported adversely to the full Committee.............. 0
Legislation reported without recommendation to the full Committee. 0
Legislation reported as original measure to the full Committee.... 1
Legislation discharged from the Subcommittee...................... 8
Legislation pending before the full Committee..................... 0
Legislation reported to the House................................. 16
Legislation discharged from the Committee......................... 9
Legislation pending in the House.................................. 5
Legislation passed by the House................................... 22
Legislation pending in the Senate................................. 9
Legislation vetoed by the President............................... 0
Legislation enacted into public law............................... 9
Legislation enacted into public law as part of another bill....... 2
Legislation on which hearings were held........................... 25
Days of hearings (legislative and oversight)...................... 15
Jurisdiction of the Subcommittee
The Subcommittee on Commercial and Administrative Law has
legislative and oversight responsibility for the Independent
Counsel statute, the Legal Services Corporation, the Office of
Solicitor General, the U.S. Bankruptcy Courts, the Executive
Office for the U.S. Trustees of the Department of Justice, the
Executive Office of United States Attorneys, and the
Environment and Natural Resources Division of the Department of
Justice. The Subcommittee's legislative responsibilities
include administrative law (practice and procedure), regulatory
flexibility, state taxation affecting interstate commerce,
bankruptcy law, bankruptcy judgeships, legal services, federal
debt collection, the Contract Disputes Act, the Federal
Arbitration Act, and interstate compacts.
Legislative Activities
ADMINISTRATIVE LAW/PRACTICE AND PROCEDURE (REGULATORY REFORM)
H.R. 1544, the Federal Agency Compliance Act
On May 22, 1997, the Subcommittee held a hearing on H.R.
1544, the ``Federal Agency Compliance Act,'' introduced by Mr.
Gekas. The legislation would have generally prevented agencies
from refusing to following controlling precedents of the United
States courts of appeals in the course of program
administration and litigation involving their programs. This
practice by agencies, known as ``non-acquiescence,'' has been
criticized for many years by courts and legal scholars, and has
resulted in hardship to those appearing before agencies and
continual relitigation of settled questions of law. The bill,
based upon a recommendation of the Judicial Conference of the
United States, addressed the two kinds of agency
nonacquiescence: intracircuit nonacquiescence refusal to follow
controlling appellate precedent within a specific federal
judicial circuit; and intercircuit nonacquiescence--
relitigating in other judicial circuits issues on which
precedents have already been established in multiple circuits.
Regarding intracircuit non-acquiescences, the bill
generally required an agency and all agency officials who
administer statutes and regulations within a given judicial
circuit to follow relevant existing courts of appeals precedent
in that circuit. An agency would have been permitted to assert
a position contrary to precedent in limited circumstances, for
example, when intervening legal, factual, or public policy
developments may have undermined or changed the rationale for
the earlier decision. With respect to intercircuit
nonacquiescence, the bill required the Department of Justice
and other agency officials in such situations to consider the
following factors, among others, when deciding whether to
pursue litigation when three or more circuits had decided a
question of law: (1) the effect of intervening changes in
pertinent law or public policy or circumstances on which the
other courts of appeals decisions were based; (2) subsequent
decisions of the Supreme Court or the courts of appeals that
previously decided the relevant question of law; (3) the extent
to which that question of law was fully and adequately
litigated in the earlier cases; and (4) the need to conserve
the resources of the federal court and non-agency parties to
the litigation. These provisions aimed at discouraging
intercircuit nonacquiescence were not subject to judicial
review or enforcement.
Witnesses who testified at the hearing were: James F.
Allsup, President, Allsup, Inc.; Stephen H. Anderson, U.S.
Courts of Appeals for the Tenth Circuit, Salt Lake City, Utah,
on behalf of the Judicial Conference of the United States; Dan
T. Coenen, J. Alton Hosch Professor, University of Georgia
School of Law; Peter J. Ferrara, General Counsel and Chief
Economist, Americans for Tax Reform; Arthur J. Fried, General
Counsel, Social Security Administration; John H. Pickering,
Wilmer, Cutler & Pickering, on behalf of the American Bar
Association; Stephen W. Preston, Deputy Assistant Attorney
General, Civil Division, U.S. Department of Justice; Daniel J.
Wiles, Deputy Associate Chief Counsel, (Domestic Field
Service), Office of Chief Counsel, Internal Revenue Service.
On July 24, 1997, the Subcommittee reported the bill
favorably by a voice vote. On September 17, 1997, the Judiciary
Committee reported the bill favorably by a voice vote (H. Rept.
105-395). On February 25, 1998, the House passed H.R. 1544 by a
vote of 241-176. A companion bill, S. 1166, was introduced in
the Senate on September 11, 1997, and a hearing was held by the
Subcommittee on Administrative Oversight and the Courts on June
15, 1998.
No further was action was taken by that body.
H.R. 2440, Technical Amendment in Section 10, Title 9, United States
Code
On September 11, 1997, the Subcommittee by voice vote
reported H.R. 2440, making technical corrections to section 10
of title 9, United States Code. Title 9, which governs
arbitration, contains in section 10 an obvious typographical
error which was corrected by this legislation. The Judiciary
Committee reported H.R. 2440 on September 17, 1997, by voice
vote (H. Rept. 105-381) and it was passed by the House by voice
vote on November 12, 1997. The Senate approved the bill with an
amendment on October 21, 1998, but that House was unable to act
before the adjournment sine die of the 105th Congress.
H.R. 4049, Regulatory Fair Warning Act of 1998
Chairman Gekas introduced H.R. 4049, the Regulatory Fair
Warning Act of 1998, on June 11, 1998, after announcing his
intention to do so at the Subcommittee's May 7, 1998, hearing
on Administrative Crimes and Quasi-Crimes. The bill is a
revision of H.R. 3307, which Chairman Gekas introduced in the
104th Congress.
The Subcommittee conducted a hearing on the bill July 23,
1998. Witnesses who testified at the hearing were: Joseph N.
Onek, Principal Deputy Associate Attorney General, U.S.
Department of Justice; Daniel E. Troy, Associate Scholar,
American Enterprise Institute and Partner, Wiley, Rein &
Fielding; James H. Schaum, President & CEO, Allen Memorial
Hospital, Oberlin, Ohio; and David C. Vladeck, Director, Public
Citizen Litigation Group.
The Regulatory Fair Warning Act would prevent agencies from
pursuing violations of regulations that are unclear, ambiguous,
or unavailable to the general public. The bill would prohibit
the imposition of administrative, civil, or criminal sanctions
if: (a) rules and regulations are not available to the public
or known to the regulated community; (b) rules and regulations
do not give fair warning of what is prohibited or required; or
(c) officials have misled people about what rules and
regulations prohibit or require.
No markup of H.R. 4049 was held.
H.R. 4096, Taxpayer's Defense Act
Along with 53 original cosponsors, Chairman Gekas
introduced the Taxpayer's Defense Act on June 19, 1998. The
Subcommittee conducted a hearing on the bill July 23, 1998.
Since before the founding of the United States, taxation
has been regarded as a governmental function reserved to the
legislative branch. The modern era of restricted federal
budgets, however, threatens to erode the essential principle
that taxes be levied only by Congress. Federal agencies are now
regularly and increasingly empowered to impose user fees, an
appropriate method of compensating the government for specific
benefits it provides. Such fees may become taxes, however, when
they go beyond covering the cost of services, or beyond the
value provided to identifiable beneficiaries.
The Subcommittee's February 26 hearing dealt with the
Federal Communications Commission's (FCC) Universal Service
Tax. Section 254 of the Telecommunications Act of 1996 gave the
FCC authority to define ``universal service'' and require
contributions--taxes--from long-distance telecommunications
providers for subsidizing universal service. The Taxpayer's
Defense Act was intended to prevent federal agencies from
establishing or increasing taxes through rules and regulations.
The bill would have created an expedited congressional review
procedure and would have required any agency promulgating a
rule that would establish or increase a tax to submit the rule
to Congress for its approval before such a rule can take
effect.
Witnesses who testified at the hearing were: William A.
Niskanen, Chairman, CATO Institute; Thomas A. Schatz,
President, Council for Citizens Against Government Waste; and
Christopher McLean, Deputy Administrator, Rural Utilities
Service, U.S. Department of Agriculture.
No markup of H.R. 4096 was held.
Bankruptcy
H.R. 764, the Bankruptcy Amendments of 1997, and H.R. 120, the
Bankruptcy Law Technical Corrections Act of 1997
H.R. 764, the Bankruptcy Amendments of 1997, was introduced
on February 13, 1997, by Judiciary Chairman Henry Hyde, with
Representatives George Gekas, Chairman of the Subcommittee, and
Bill McCollum as original cosponsors. Prior thereto on January
7, 1997, Representative John Conyers, Ranking Minority Member
of the Committee on the Judiciary, introduced H.R. 120, the
Bankruptcy Law Technical Corrections Act of 1997, which was
similar in many respects to H.R. 764. Both bills trace their
origins to S. 1559, the Bankruptcy Technical Corrections Act of
1996, which was introduced by Senator Charles Grassley in the
104th Congress and passed, as amended, on unanimous consent by
the Senate on August 2, 1996. H.R. 764 also reflects
recommendations made by the National Bankruptcy Conference, a
select, nonpartisan organization of bankruptcy experts.
On April 30, 1997, the Subcommittee on Commercial and
Administrative Law conducted a hearing on H.R. 764 and H.R.
120. Witnesses who testified at the hearing were:
Representatives Vernon Ehlers and Joe Knollenberg; Kenneth
Klee, National Bankruptcy Conference; Roger Whelan, American
Bankruptcy Institute; Frederick Luper, Commercial Law League of
America; Albert Sullivan, Director, Office of Asset Management
and Disposition, United States Department of Housing and Urban
Development; Donald Ennis, American Council of Life Insurance
and the Mortgage Bankers Association; Joseph Bonita, American
Land Title Association; Richard Gerken, Equipment Leasing
Association; and Jill Sturtevant, American Bankers Association.
While the principal thrust of H.R. 120 was to make
technical and clarifying amendments to the Bankruptcy Code, it
also contained several substantive provisions. These included,
for example, an amendment to the definition of ``single asset
real estate'' to clarify that it did not apply to a family
farmer. Another provision authorized the trustee, subject to
court approval and providing it was in the best interests of
the estate, to render professional services, such as those
performed by appraisers and auctioneers, and be compensated for
such services. It also provided that a security interest in
property created by a transfer to which Section 547(c)(3)
applies was excepted from the Bankruptcy Code's automatic stay
provisions.
H.R. 764, as introduced, had provisions that were in some
instances identical and in other instances dissimilar to those
in H.R. 120. For example, H.R. 764's amendment to the
Bankruptcy Code's definition of ``single asset real estate''
with respect to its inapplicability to family farmers had a
similar counterpart in H.R. 120, but H.R. 764--in contrast to
H.R. 120--also eliminated the debt ceiling in the single asset
real estate definition. Another example of a difference is that
H.R. 764 did not include H.R. 120's provision concerning
professional services rendered by a trustee.
On June 25, 1997, the Subcommittee on Commercial and
Administrative Law met in open session and adopted by voice
vote an amendment in the nature of a substitute to H.R. 764,
which reconciled many of the differences between both bills.
H.R. 764, as amended, was then ordered favorably reported by
the Subcommittee by voice vote to the Committee on the
Judiciary. On July 16, 1997, the Committee met in open session
and ordered favorably reported H.R. 764, as amended by the
Subcommittee amendment in the nature of a substitute, by a
voice vote. The Committee filed its report on H.R. 764, (H.
Rept. 105-324), on October 21, 1997.
As reported by the full Committee, H.R. 764 primarily made
technical corrections to the Bankruptcy Code that were intended
to clarify original legislative intent, correct drafting
defects, and improve grammar and cross-references. In addition,
the bill included substantive amendments to the Bankruptcy Code
that were limited in scope and designed to rectify shortcomings
in current law. These included a provision increasing the
monetary limitation in the Bankruptcy Code's definition of
single asset real estate from $4 million to $15 million to make
expedited relief from the automatic stay available to creditors
in a broader range of commercial property reorganizations. In
addition, the bill added language clarifying the rights of
parties to leasing arrangements and executory contracts with
respect to nonmonetary defaults. H.R. 764 also made a
perfecting amendment to the Bankruptcy Code's provisions
concerning the avoidability of certain security interests given
to a noninsider prior to a bankruptcy filing.
On November 12, 1997, the House considered H.R. 764 in a
revised form from the version reported by the Committee. One
revision clarified the bill's amendment to Section 365(b) of
the Bankruptcy Code to provide that when a trustee or debtor in
possession is excused from curing a nonmonetary default under a
real estate lease or executory contract as a condition to
assumption of the lease or contract, the creditor remains
entitled to compensation for actual pecuniary loss resulting
from the default and to adequate assurance of future
performance. The other revision amended Section 1124(2) of the
Bankruptcy Code to clarify that a creditor remains entitled to
compensation for actual pecuniary loss resulting from the
default for purposes of determining impairment of such
creditor's claim. The House, under suspension of the rules,
passed H.R. 764, as amended, by voice vote.
The bill was received in the Senate and referred to the
Senate Committee on the Judiciary on November 13, 1997. On
October 13, 1998, the bill was referred to the Senate
Subcommittee on Administrative Oversight and the Courts.
Although the Senate subsequently adjourned without taking
further action on the bill, the Conference Report on H.R. 3150,
the Bankruptcy Reform Act of 1998, incorporated most of H.R.
764 as it passed the House. Senator Grassley had relied heavily
on H.R. 764 in crafting Title IV of S. 1301, the Consumer
Bankruptcy Reform Act of 1998, as reported in the Senate. See
subsequent discussion of H.R. 3150 (which includes reference to
S. 1301).
H.R. 1596, the Bankruptcy Judgeship Act of 1997
H.R. 1596, the Bankruptcy Judgeship Act of 1997, was
introduced on May 14, 1997, by Representative George Gekas,
Chairman of the Subcommittee on Commercial and Administrative
Law, with the cosponsorship of Representatives Henry Hyde,
Chairman of the Committee on the Judiciary, John Conyers,
Ranking Minority Member of the Committee on the Judiciary, and
Jerrold Nadler, Ranking Minority Member of the Subcommittee on
Commercial and Administrative Law.
Bankruptcy judges serve as judicial officers of the United
States District Courts. In contrast with Article III judges,
who are nominated by the President and confirmed by the Senate
to lifetime positions, bankruptcy judges are selected by the
regional United States Courts of Appeals and serve 14-year
terms, with eligibility for reappointment.
This bill was introduced in response to the unprecedented
increase in bankruptcy case filings and the attendant need in
certain areas in the nation for additional bankruptcy
judgeships. Bankruptcy case filings in 1996, for example,
exceeded one million for the first time. This represented a
27.2 percent increase over bankruptcy case filings in the prior
year.
H.R. 1596 authorized the creation of seven permanent and 11
temporary bankruptcy judgeships in 14 Federal judicial
districts and extended an existing temporary judgeship. The
legislation reflected Congressional policy favoring the
creation of temporary as opposed to permanent judgeships in
order to limit future costs wherever possible and appropriate.
The Subcommittee on Commercial and Administrative Law
conducted a hearing on H.R. 1596 on June 19, 1997. Witnesses
who testified at the hearing were: Hon. David Thompson, United
States Court of Appeals Judge for the Ninth Circuit and
Chairman of the Committee on the Administration of the
Bankruptcy System of the Judicial Conference of United States
Courts; Hon. Frank Koger, Chief Bankruptcy Judge for the
Western District of Missouri, and President of the National
Conference of Bankruptcy Judges; Hon. Tina Brozman, Chief
Bankruptcy Judge, Southern District of New York; Richard Wynne
of the Los Angeles law firm of Wynne Spiegel Itkin, on behalf
of the Los Angeles County Bar Association; and Michael Richman
of the New York law office of Mayer, Brown and Platt, on behalf
of the American Bankruptcy Institute.
On June 19, 1997, the Subcommittee on Commercial and
Administrative Law met in open session and ordered reported
H.R. 1596 without amendment by voice vote. Thereafter, the
Committee on the Judiciary met in open session on July 16,
1997, and ordered favorably reported the bill without amendment
by voice vote. The Committee filed its report on H.R. 1596, (H.
Rept. 105-208), on July 28, 1997. On that same day, the bill
was called up by the House under suspension of the rules and
passed by voice vote. The following day, the bill was received
by the Senate and referred to the Senate Committee on the
Judiciary. It was thereafter referred to the Senate
Subcommittee on Administrative Oversight and the Courts on May
15, 1998. Although the Senate took no further action on the
bill, a modified version of H.R. 1596 was incorporated into
Section 322 of S. 1301, the Consumer Bankruptcy Reform Act of
1998, and subsequently included in the Conference Report on
H.R. 3150, the Bankruptcy Reform Act of 1998. See subsequent
discussion of H.R. 3150 (which includes reference to S. 1301).
H.R. 2592, the Private Trustee Reform Act of 1997, and Review of Post-
Confirmation Fees in Chapter 11 Cases
H.R. 2592, the Private Trustee Reform Act of 1997, was
introduced on October 1, 1997, by Representative Bob Goodlatte,
for himself, and Representatives Lamar Smith and Bob Barr.
The Subcommittee on Commercial and Administrative Law
conducted a combined hearing on H.R. 2592 in conjunction with a
review of postconfirmation fees in Chapter 11 cases on October
9, 1997. Witnesses who testified at the hearing were:
Representative Bob Goodlatte; Ford Elsaesser, Vice President
for Research, American Bankruptcy Institute; Henry Hildebrand,
III, National Association of Chapter 13 Trustees; Hon. Frank
Koger, Chief Bankruptcy Judge for the Western District of
Missouri, and President, National Conference of Bankruptcy
Judges; Professor Jeffrey Lubbers of the Washington College of
Law, American University; W. Clarkson McDow, Jr., United States
Trustee for Region 4; Laurence Morin, President, Association of
Bankruptcy Professionals; Professor Jeffrey Morris, University
of Dayton Law School, on behalf of the National Bankruptcy
Conference; Kevyn Orr, Deputy Director, Executive Office for
United States Trustees; Joseph Patchan, Director, Executive
Office for United States Trustees; W. Steve Smith, President,
National Association of Bankruptcy Trustees; and Ellen Vergos,
United States Trustee for Region 8.
As amended in the full Committee by an amendment in the
nature of a substitute, the bill created a procedural mechanism
for administrative and judicial review of certain decisions
made by United States trustees with regard to their supervision
of bankruptcy trustees. Bankruptcy trustees are fiduciaries
responsible for administering bankruptcy cases. For consumer
bankruptcy cases, there are two types of trustees. One type
consists of individuals appointed by the United States trustee
to serve on a ``panel of private trustees'' who are responsible
for administering cases filed under Chapter 7 of the Bankruptcy
Code (a form of bankruptcy relief in which the debtor's non-
exempt assets are liquidated and distributed to the debtor's
creditors). Qualifications for panel membership are specified
by regulation. Upon appointment to a panel, a trustee is
assigned Chapter 7 cases by the United States trustee to
administer. Panel trustees are appointed for a 1-year term,
subject to renewal. As of 1997, there were approximately 1,200
panel trustees.
Another type of trustee consists of individuals appointed
to administer Chapter 13 (individual debt reorganization) and
Chapter 12 (family farmer) cases. In addition to performing
many of the same duties as private trustees, these individuals,
known as ``standing trustees,'' are responsible for collecting
payments due under the debtor's repayment plan and distributing
these payments to the debtor's creditors. A standing trustee's
compensation and expenses attributable to the trusteeship are
fixed by the Attorney General. These expenses are not case-
specific, but relate to the operation of the trusteeship. As of
1997, there were approximately 200 standing trustees.
The United States trustee is responsible for supervising a
trustee's performance. To this end, the United States Trustee
Program has promulgated ``initiatives'' imposing stringent
standards of accountability for these fiduciaries who, in turn,
are entrusted with the responsibility to administer billions of
dollars in bankruptcy estate assets. A trustee determined to be
derelict in discharging his or her administrative or fiduciary
duties may be suspended by the United States trustee from
active case assignment until the problem is rectified. In
addition, the United States trustee may decline to reappoint a
panel trustee upon the expiration of his or her 1-year
appointment. These actions, however, only relate to the
assignment of future cases. In contrast, a trustee may be
removed from pending bankruptcy cases in which he or she is
serving only by the court ``for cause,'' after notice and
hearing.
The bill, as amended, permitted an individual whose
appointment to the trustee panel or as a standing trustee is
terminated by the United States trustee or who ceases to be
assigned cases by the United States trustee to obtain
administrative review of such action, including an
administrative hearing on the record, and review by the
district court of a final agency decision. It also would have
allowed a standing trustee, after exhausting all available
administrative remedies, to obtain district court review of a
final agency action denying a claim of actual, necessary
expenses by such trustee. In addition, H.R. 2592, as amended,
specified the standard of judicial review and authorized a
district court to refer these matters for a recommendation to a
bankruptcy judge or a magistrate judge in districts with at
least three bankruptcy judges or to a magistrate judge in
districts with less than three bankruptcy judges. Further, the
legislation, as amended, would have directed the Attorney
General to promulgate rules implementing its provisions
concerning the suspension and termination of panel and standing
trustees as well as its provisions concerning the expenses of
standing trustees.
On April 30, 1998, the Subcommittee on Commercial and
Administrative Law met and ordered favorably reported the bill
H.R. 2592, without amendment, by voice vote. Thereafter, the
full Committee met on July 21, 1998, and ordered favorably
reported the bill, with an amendment in the nature of a
substitute, by voice vote. The Committee filed its report on
H.R. 2592, (H. Rept. 105-663), on July 31, 1998. On August 3,
1998, the House passed the bill, as amended, by voice vote
under suspension of the rules. The principal revision pertained
to the bill's provisions concerning judicial review. As
revised, H.R. 2592 eliminated magistrate judges from the
judicial review process and required the district court to
determine whether to retain the matter or refer it a bankruptcy
judge in the district.
On August 31, 1998, the bill, as amended, was received in
the Senate and referred to the Committee on the Judiciary. It
was thereafter referred to the Subcommittee on Administrative
Oversight and the Courts on October 13, 1998. Although the
Senate adjourned without taking further action on the bill, a
revised version of H.R. 2592 appeared in the Conference Report
on H.R. 3150, the Bankruptcy Reform Act of 1998. The principal
revisions concerned the bill's judicial review provisions.
Specifically, it provided for judicial review in the United
States district court of a final agency decision and required
such decision to be affirmed unless unreasonable or without
cause based upon the administrative record before the agency.
See subsequent discussion of H.R. 3150.
H.R. 2604, the Religious Liberty and Charitable Donation Protection Act
of 1997, and H.R. 2611, the Religious Fairness in Bankruptcy
Act of 1997
Representative Ron Packard introduced H.R. 2604, the
Religious Liberty and Charitable Donation Protection Act of
1997, on October 2, 1997. As originally introduced, H.R. 2604
was identical to S. 1244, the ``Religious Liberty and
Charitable Donation Protection Act of 1997,'' which was
introduced by Senator Charles Grassley, for himself, and
Senators Jeff Sessions and Rod Grams on October 1, 1997.
Following its introduction, H.R. 2604 gained the support of 127
bipartisan cosponsors.
A somewhat similar bill, H.R. 2611, the Religious Fairness
in Bankruptcy Act of 1997, was introduced by Representatives
Helen Chenoweth (for herself and Representative James
Traficant) on October 6, 1997. It subsequently received support
from 107 bipartisan cosponsors.
The Subcommittee on Commercial and Administrative Law
conducted a hearing on both bills on February 12, 1998.
Witnesses who testified at the hearing were: Senator Charles
Grassley; Representatives Helen Chenoweth and Ron Packard;
Stephen Case, Davis, Polk & Wardwell, on behalf of the National
Bankruptcy Conference; Michael Farris, President, Home School
Legal Defense Association; Dr. Stephen Paul Goold, Crystal
Evangelical Free Church; Ralph Hardy, Jr., President,
Washington, D.C. Stake, The Church of Jesus Christ of the
Latter-day Saints; Professor Douglas Laycock, University of
Texas Law School; and Steven McFarland, Director, Center for
Law and Religious Freedom.
Some courts have held that a contribution made to a
religious or charitable organization by a debtor before he or
she filed for bankruptcy relief can be recovered by a
bankruptcy trustee as a fraudulent transfer under section 548
of the Bankruptcy Code on the basis that reasonably equivalent
value was not received in exchange for the donation. Other
courts have concluded that a debtor received reasonably
equivalent value in exchange for his or her religious
contributions. These courts consider, for example, whether the
debtor received certain services from the religious entity,
such as counseling, in exchange for his or her donation. This
analysis, which essentially requires courts to value spiritual
benefits and to determine whether they were conferred in
exchange for the debtor's tithe, has led to disparate case law.
H.R. 2604 protects certain charitable contributions made by
an individual debtor to qualified religious or charitable
entities, defined by reference to the Internal Revenue Code,
within 1 year preceding the filing date of the debtor's
bankruptcy petition from being avoided by a bankruptcy trustee
under section 548 of the Bankruptcy Code. The bill reflects
several important policy considerations that warrant treating
religious and charitable contributions differently from other
property transfers under section 548 of the Bankruptcy Code.
One such policy consideration pertains to the inherent nature
of these contributions and why they are made. Religious
contributions are often given from a sense of duty. The
practice of tithing, for example, is viewed by some religious
organizations as a fundamental precept and doctrine based on
divine commandment from God. Accordingly, the use of fraudulent
transfer provisions to undo tithing arguably may infringe the
First Amendment rights of both the donor and donee.
Another policy consideration is that contributions are used
by religious and charitable organizations to fund valuable
services to society, which serve the common good. This
principle is recognized in the Internal Revenue Code's
provisions concerning the deductibility of certain charitable
contributions. Furthermore, most religious and charitable
organizations lack the means to defend against a recovery
action filed by a bankruptcy trustee under section 548. As a
result, they must either return the funds or divert other
resources to pay for defending such recovery actions.
In addition to providing this relief, H.R. 2604 protects
the right of certain debtors to tithe or make charitable
contributions after filing for bankruptcy relief. Some courts
have dismissed a debtor's Chapter 7 case (a form of bankruptcy
relief that discharges an individual debtor of most of his or
her personal liability without any requirement for repayment)
for substantial abuse under section 707(b) of the Bankruptcy
Code based on the debtor's charitable contributions. The
legislation prevents this. The bill also protects the right of
debtors who file for Chapter 13 (a form of bankruptcy relief
that requires a debtor to commit his or her future income to
fund a plan of repayment) to tithe or make charitable
contributions. Some courts have held that tithing is not a
reasonably necessary expense or have attempted to fix a
specific percentage as the maximum that a Chapter 13 debtor may
include in his or her budget.
H.R. 2611 would have deemed a donation to a religious group
or entity made by a debtor out of a sense of religious
obligation to have been made in exchange for reasonably
equivalent value. This bill proposed to amend section 548(d) of
the Bankruptcy Code by adding a new subsection creating an
exemption for donations made based on religious obligation.
On May 7, 1998, the Subcommittee on Commercial and
Administrative Law was discharged from further consideration of
H.R. 2604. Thereafter, the Committee on the Judiciary held a
markup on May 14, 1998, and ordered favorably reported the bill
without amendment by voice vote. The Committee filed its report
on H.R. 2604, (H. Rept. 105-556), on June 3, 1998. A revised
version of the bill, which included a provision preempting
state law identical to a provision in its Senate counterpart,
was considered on the House suspension calendar. After passing
H.R. 2604, as amended, the House then, by unanimous consent,
called up S. 1244, which was identical in content to H.R. 2604,
and passed it by voice vote. On June 19, 1998, the President
signed S. 1244 into law as Public Law Number 105-183.
H.R. 3150, the Bankruptcy Reform Act of 1998, H.R. 2500, the
Responsible Borrower Protection Bankruptcy Act, and H.R. 3146,
the Consumer Lenders and Borrowers Bankruptcy Accountability
Act of 1998
Representative George Gekas, Chairman of the Subcommittee
on Commercial and Administrative Law, for himself and
Representatives Bill McCollum, Rick Boucher, and James Moran,
introduced H.R. 3150, the Bankruptcy Reform Act of 1998, on
February 3, 1998. That same day, Representative Jerrold Nadler,
Ranking Minority Member of the Subcommittee on Commercial and
Administrative Law, introduced H.R. 3146, the Consumer Lenders
and Borrowers Bankruptcy Accountability Act of 1998.
As introduced, H.R. 3150 incorporated many of the consumer
bankruptcy reform provisions of H.R. 2500, the Responsible
Borrower Protection Bankruptcy Act, which was introduced by
Representative Bill McCollum on September 18, 1997. Both bills
attracted extensive bipartisan support. H.R. 2500 eventually
obtained 185 cosponsors, while H.R. 3150 gained the support of
75 cosponsors.
H.R. 3150 presented a comprehensive package of reforms
pertaining to consumer and business bankruptcy law and
practice, and included provisions regarding the treatment of
tax claims and enhanced data collection. H.R. 3150 also
established a separate chapter under the Bankruptcy Code
devoted to the special issues and concerns presented by
international insolvencies.
The consumer bankruptcy reforms of H.R. 3150, as
introduced, were implemented through a self-evaluating income/
expense screening mechanism, the establishment of new
eligibility standards for bankruptcy relief, the imposition of
additional financial disclosure requirements for consumer
debtors, and augmented responsibilities for those charged with
administering consumer bankruptcy cases. In addition, H.R. 3150
instituted a panoply of consumer bankruptcy reforms designed to
increase the protections afforded to debtors and creditors.
H.R. 3150 was introduced in response to several
developments affecting bankruptcy law and practice. According
to statistics released by the Administrative Office of the
United States Courts, more than 1.4 million Americans filed for
bankruptcy relief in calendar year 1997. This record number of
bankruptcy case filings was 19.1 percent more than the number
of bankruptcy cases filed the previous year. The Administrative
Office also reported that the rate of increase was part of a
continuing trend. Paradoxically, however, this explosion in
bankruptcy filing rates occurred during a period when the
economy continued to be robust, with low unemployment and high
consumer confidence.
Coupled with this development was the release of a
privately funded study that estimated financial losses in 1997,
resulting from these bankruptcy filings exceeded $44 billion, a
loss equal to more than $400 per household. This study
projected that even if the growth rate in personal bankruptcies
slowed to only 15 percent over the next 3 years, the American
economy would have to absorb a cumulative cost of more than
$220 billion. Another study concluded that a significant
portion of debtors who file for bankruptcy relief can, in fact,
repay a portion, if not all, of their debts.
The consumer bankruptcy provisions of H.R. 3150 addressed
the needs of creditors as well as debtors. With respect to
creditors, H.R. 3150's principal provisions consisted of needs-
based bankruptcy relief, general protections for creditors, and
protections for specific types of creditors. The bill's debtor
protections included enhanced requirements for those
professionals and others who assist consumer debtors in
connection with their bankruptcy cases, expanded notice
requirements for consumers with regard to alternatives to
bankruptcy relief, required participation of consumer debtors
in debt repayment programs, and the institution of a pilot
program to study the effectiveness of consumer financial
education for debtors.
The heart of H.R. 3150's consumer bankruptcy reforms was
the implementation of a mechanism to ensure that consumer
debtors repay their creditors the maximum that they can afford.
For Chapter 7 of the Bankruptcy Code (a form of bankruptcy
relief where the debtor generally receives a discharge of his
or her personal liability for most unsecured debts), H.R. 3150
implemented mandatory eligibility standards for those
individuals seeking this form of bankruptcy relief. The needs-
based formula under H.R. 3150, as introduced, articulated
objective criteria so that debtors and their counsel could
self-evaluate their eligibility for relief under Chapter 7 or
Chapter 13. Certain expense allowances were localized and a
debtor's extraordinary circumstances were recognized, including
episodic losses of income. Parties in interest, such as
creditors, were empowered under H.R. 3150 to move for dismissal
of Chapter 7 cases where debtors were ineligible. These reforms
were intended to have no impact on consumer debtors who lacked
the ability to repay their debts and deserved a fresh start.
With regard to business bankruptcy reform, H.R. 3150
addressed the special problems that small business cases
present by instituting a variety of time frames and enforcement
mechanisms to identify and weed out small business debtors who
were not likely to reorganize. It also required more active
monitoring of these cases by United States Trustees and the
bankruptcy courts. In addition, H.R. 3150 included provisions
dealing with business bankruptcy cases in general and Chapter
12 (family farmer bankruptcies). The small business and single
asset real estate provisions of H.R. 3150 were largely derived
from consensus recommendations of the National Bankruptcy
Review Commission. These provisions also received broad support
from those in the bankruptcy community, including various
bankruptcy judges, creditor groups, and the Executive Office
for United States Trustees.
With regard to single asset real estate debtors, H.R. 3150
eliminated the monetary cap from the Bankruptcy Code's
definition applicable to these debtors and made them subject to
the small business provisions of the bill. It also amended the
automatic stay provisions by permitting a single asset real
estate debtor to make requisite interest payments out of rents
or other proceeds generated by the real property.
H.R. 3150, in addition, contained several provisions having
general impact with respect to bankruptcy law and practice.
Under H.R. 3150, certain appeals from final bankruptcy court
decisions were to be heard directly by the court of appeals for
the appropriate circuit. Another general provision of H.R. 3150
required the Executive Office for United States Trustees to
compile various statistics regarding Chapter 7, 11 and 13 cases
and to make these data available to the public and to report
annually to Congress on the data collected. Other general
provisions included a prohibition against the appointment of
fee examiners and the allowance of shared compensation with
bona fide public service attorney referral programs.
The Committee on the Judiciary began its consideration of
comprehensive bankruptcy reform early in the 105th Congress. On
April 16, 1997, the Subcommittee on Commercial and
Administrative Law conducted a hearing on the operation of the
bankruptcy system that was combined with a status report from
the National Bankruptcy Review Commission. This was the first
of nine hearings that the Subcommittee would conduct on
bankruptcy reform over the ensuing year.
With regard to H.R. 3150 alone, the Subcommittee on
Commercial and Administrative Law held four hearings. Over the
course of those hearings, more than 60 witnesses, representing
a broad cross-section of interests and constituencies in the
bankruptcy community, testified. Nearly every major
organization having an interest in bankruptcy reform had an
opportunity to participate in these hearings. Witnesses who
testified at the March 10, 1998, hearing were: Representatives
Bill McCollum, Rick Boucher and Jim Moran; Honorable Edith
Hollan Jones, United States Court of Appeals Judge for the
Fifth Circuit; Honorable Randall Newsome, United States
Bankruptcy Judge for the Northern District of California; Lloyd
Cutler, Wilmer, Cutler & Pickering, representing the Bankruptcy
Issues Council; Honorable Heidi Heitkamp, Attorney General of
the State of North Dakota, representing the National
Association of Attorneys General; Karen Cosgrove, Vice
President of Business Operations, Kemp Management, representing
the National Multi-Housing Council and National Apartment
Association; John Gleason, Vice President/Credit, Bon-Ton
Department Stores, representing the National Retail Federation;
Bruce Hammonds, Senior Vice Chairman, MBNA America Bank, N.A.;
Janet Kubica, Chief Executive Officer, Postmark Credit Union,
representing the Credit Union National Association; William
Kosturko, Executive Vice President of People's Bank of
Bridgeport, representing America's Community Bankers; Nicholl
Russell, a former Chapter 7 debtor; James ``Ike'' Shulman,
representing the National Association of Consumer Bankruptcy
Attorneys; Henry Sommer, Consumer Bankruptcy Assistance
Project; Matthew Mason, Assistant Director, UAW-GM Legal
Services Plan; Stuart Feldstein, President, SMR Research
Corporation; Mark Lauritano, Senior Vice President, WEFA, Inc.;
Professor Lawrence Ausubel, Department of Economics, University
of Maryland; and Vern McKinley, regular policy contributor for
Cato Institute.
Witnesses who testified at the March 12, 1998, hearing
were: Dr. Michael Staten, Credit Research Center, Georgetown
University School of Business; Richard Stana, Associate
Director, Administration of Justice Issues, U.S. General
Accounting Office; Dr. Thomas Neubig, National Director, Policy
Economics & Quantitative Analysis, Ernst & Young; Dr. Fritz
Scheuren, Associate National Technical Director, Statistical
Sampling, Ernst & Young; George Wallace, Eckert Seamons Cherin
& Mellott, representing the American Financial Services
Association; Robert Mitsch, Mitsch & Crutchfield, representing
the National Retail Federation; Robert Waldschmidt, Howell &
Fisher, representing the National Association of Bankruptcy
Trustees; Norma Hammes, Gold & Hammes, representing National
Association of Consumer Bankruptcy Attorneys; Professor Karen
Gross, New York Law School; Lewis Mandell, Dean, Marquette
University; Marion Olson, Jr., Standing Chapter 13 Trustee,
Western District of Texas--San Antonio Division; and William
Brewer, Jr., National Association of Consumer Bankruptcy
Attorneys.
Witnesses who testified at the March 18, 1998, hearing
were: Judith Starr, Assistant Chief Litigation Counsel,
Enforcement Division, Securities and Exchange Commission;
Donald Banks, Director of Legal Services, Hudson Corporation,
representing the National Retail Federation; Brian McDonnell,
President and Chief Executive Officer, Navy Federal Credit
Union, representing the National Association of Federal Credit
Unions; Judith Greenstone Miller, representing the Commercial
Law League of America; Honorable Bernice Donald, United States
District Court Judge for the Western District of Tennessee;
Thomas Boone, Managing Director of Portfolio Services,
Countrywide Home Loans, Inc.; Jeffrey Tassey, Senior Vice
President of Government & Legal Affairs, American Financial
Services Association; Mallory Duncan, Vice President and
General Counsel, National Retail Federation; Michael McEneney,
Partner, Morrison & Foerster, representing the Bankruptcy
Issues Council; Honorable Eugene Wedoff, United States
Bankruptcy Judge, Northern District of Illinois, representing
the American Bankruptcy Institute; Professor Jeffrey Morris,
University of Dayton School of Law, representing the National
Bankruptcy Conference; Michael Kane, Deputy Secretary for
Enforcement, Pennsylvania Department of Revenue; James Shepard,
former member of the National Bankruptcy Review Commission;
Professor Grant William Newton, Pepperdine University; and Paul
Asofsky, former member of the Tax Advisory Committee of the
National Bankruptcy Review Commission.
Witnesses who testified at the fourth and final hearing on
March 19, 1998, were: Stephen Case of Davis, Polk & Wardwell,
former Senior Advisor to the National Bankruptcy Review
Commission; John Gose of Preston, Gates & Ellis, former member
of the National Bankruptcy Review Commission; Patricia Staiano,
United States Trustee for Region 3; Christopher Graham of
Thacher Proffit & Wood, representing the American Bankruptcy
Institute; Professor Alan Resnick, Hofstra University School of
Law, representing the National Bankruptcy Conference; Honorable
Robert Hershner, Jr., Chief Bankruptcy Judge, Middle District
of Georgia, and President of the National Conference of
Bankruptcy Judges; Norman Kranzdorf, President, Kranzco Realty
Trust, representing the International Council of Shopping
Centers; James Smith, President and Chief Executive Officer,
Union State Bank and Trust of Clinton, representing the
American Bankers Association; Charles Tatelbaum of Johnson,
Blakely, Pope, Bakar & Ruppel, representing National
Association of Credit Managers; Leon Forman of Blank Rome
Comisky & McCauley, representing American College of
Bankruptcy; William Perlstein of Wilmer Cutler & Pickering,
representing American Bar Association-Business Section; Harold
Bordwin, Keen Realty Consultants Inc.; Kevyn Orr, Deputy
Director, Executive Office for United States Trustees;
Honorable Michael Kaplan, Chief Bankruptcy Judge, Western
District of New York, Judicial Conference of the United States;
and Professor Lynn LoPucki, Cornell Law School, former Senior
Advisor/Data Study Project for the National Bankruptcy Review
Commission.
During the course of these hearings, the Subcommittee on
Commercial and Administrative Law heard testimony that if H.R.
3150's needs-based and other consumer bankruptcy reforms were
implemented, the rate of repayment to creditors would increase
while the number of bankruptcy filings would decrease as more
debtors were channeled into Chapter 13 as opposed to Chapter 7.
On April 23, 1998, the Subcommittee on Commercial and
Administrative Law met in open session and ordered reported the
bill H.R. 3150, by voice vote with a single amendment in the
nature of a substitute. Thereafter, the Committee on the
Judiciary met on May 12, 13, and 14, 1998, in open session. Of
43 amendments offered, 18 were adopted. Among the amendments
agreed to were two offered by Chairman Hyde. One amendment
moderated the bill's needs-based formula and the other
amendment subordinated priority claims incurred to pay
nondischargeable debts to existing priority claims, such as
obligations for alimony, maintenance or child support.
Representative Rick Boucher offered four amendments that were
agreed to concerning the treatment of domestic support
obligations and related matters. Representative Steve Chabot
offered an amendment relating to aircraft equipment and vessels
that was agreed to by voice vote. Also agreed to was an
amendment by Representative Bob Goodlatte exempting certain
Chapter 11 debtors from the requirement to pay quarterly fees
to the United States Trustee Program.
The Committee ordered reported favorably H.R. 3150, as
amended, by a recorded vote of 18 to 10. On May 18, 1998, the
Committee filed its report on H.R. 3150 (H. Rept. 105-540).
The House, under a rule making certain amendments in order,
thereafter passed H.R. 3150, as amended, with a vote of 306 to
118 on June 10, 1998. Among the principal changes to the bill
that occurred as the result of floor action was the inclusion
of a provision according first priority to domestic support
obligations under section 507 of the Bankruptcy Code. In
addition, the bill's $100,000 homestead exemption cap was
replaced with a provision concerning the conversion of
nonexempt property into exempt property with intent to hinder,
delay, or defraud a creditor. Provisions regarding the conduct
of studies on small businesses and the impact of the extension
of credit to dependent students were also added to the bill.
The following day, the bill was received in the Senate. On
September 23, 1998, H.R. 3150 was laid before the Senate by
unanimous consent. The Senate struck all of H.R. 3150's
language after its enacting clause and substituted the language
of S. 1301, as amended. H.R. 3150, as amended, was then passed
by the Senate in lieu of S. 1301 by a recorded vote of 97 to 1.
On September 28, 1998, the House agreed without objection
to the request of the Senate for a conference on the House bill
and Senate amendment to H.R. 3150. On that same day, the House
also passed a motion to instruct conferees with respect to
Section 405 of H.R. 3150, as amended by the Senate, which would
have amended the Truth in Lending Act with respect to certain
lending practices of creditors in connection with an extension
of credit. Representatives Henry Hyde, Chairman, Committee on
the Judiciary; John Conyers, Ranking Minority Member, Committee
on the Judiciary, George Gekas, Chairman, Subcommittee on
Commercial and Administrative Law; Jerrold Nadler, Ranking
Minority Member, Subcommittee on Commercial and Administrative
Law; Ed Bryant; Steve Chabot; Bob Goodlatte; Bill McCollum;
Rick Boucher; and Sheila Jackson Lee were appointed as House
conferees. Senators Orrin Hatch, Chairman, Committee on the
Judiciary; Patrick Leahy, Ranking Minority Member, Committee on
the Judiciary; Charles Grassley, Chairman, Subcommittee on
Administrative Oversight and the Courts; Richard Durbin,
Ranking Minority Member, Subcommittee on Administrative
Oversight and the Courts; and Jeff Sessions were appointed as
Senate conferees.
The Conference Report (H. Rept. 105-794) was filed on
October 7, 1998. The Conference Report differed from the House
passed version of H.R. 3150 in various respects. For example,
the Conference Report modified the House-passed version's
needs-based consumer bankruptcy formula and its application.
Whereas the House version utilized a pre-filing formula
designed to channel consumer debtors with repayment capacity
into Chapter 13, the Conference Report adopted the procedural
approach of S. 1301 and preserved the right of a debtor to have
a judge review his or her individual case and repayment
capacity. The Conference Report, however, retained the House
version's formula with regard to expense allowances and the
deductibility of certain debts to determine repayment capacity.
In addition to revising several of the House version's
nondischargeability provisions, the Conference Report included
a provision expanding the House version's prohibition against
cramdown of certain secured obligations. Under the Conference
Report, the cramdown of debts securing the purchase of personal
property acquired by an individual debtor within 5 years of
filing for bankruptcy relief was prohibited. The Conference
Report also expanded the House version's 1-year domicile
requirement for claiming exemptions to 2 years. In addition,
the Conference Report included provisions intended to protect
savings earmarked for the education of a debtor's child.
Further, it added provisions concerning the treatment of
financial contracts and asset-backed securitizations.
A motion in the House to recommit the Report with
instructions to the Conference Committee failed by a vote of
157 to 266 on October 9, 1998. The House then agreed to the
Conference Report by a recorded vote of 300 to 125. On that
same day, the Senate agreed to a motion to proceed on the
Conference Report by a recorded vote of 94 to 2. While further
action by the Senate with respect to the Conference Report did
not occur prior to the Senate's adjournment on October 21,
1998, the Omnibus Consolidated and Emergency Supplemental
Appropriations Act for Fiscal Year 1999 included a provision
reenacting and extending Chapter 12, a form of bankruptcy
relief for family farmers, until April 1, 1999.
H.R. 4239 and H.R. 4393, the Financial Contract Netting Improvement Act
of 1998
Representative Jim Leach, Chairman of the Committee on
Banking and Financial Services, introduced H.R. 4239, the
Financial Contract Netting Improvement Act of 1998, on July 16,
1998. In addition to the Committee on Banking and Financial
Services, H.R. 4239 was referred to the Committee on the
Judiciary and the Commerce Committee.
This legislation, in its initial form, codified a series of
recommendations proposed by a Presidential interagency working
group whose members included the Federal Deposit Insurance
Corporation, Securities and Exchange Commission, Commodity
Futures Trading Commission, Office of the Comptroller of the
Currency, the Department of the Treasury, Federal Reserve Bank
of New York, and the Board of Governors of the Federal Reserve
System. The purpose of this legislation was to reduce systemic
risk in the financial market presented by a market member's
bankruptcy. The legislation sought to effectuate this goal by
amending the Bankruptcy Code, the Federal Deposit Insurance Act
(``FDIA''), the Federal Deposit Insurance Corporation
Improvement Act of 1991 (``FDICIA''), and the Securities
Investor Protection Act of 1971 (``SIPA'').
A revised version of the bill, H.R. 4393, was later
introduced by Representative Leach on August 4, 1998, which
included revisions espoused by the Bond Market Association (a
group representing securities firms and banks that underwrite,
trade and sell debt securities) and the International Swaps and
Derivatives Association (an international financial trade
association whose membership is comprised of commercial,
merchant and investment banks that engage in swaps and other
privately negotiated derivatives transactions). Among the
substantive provisions in H.R. 4393 affecting bankruptcy law
that were not included in H.R. 4239 was a provision that
treated certain asset-backed securitizations as valid
transfers. In addition, the superseding version of this bill
broadened the scope of certain definitions to include
additional types of transactions and a new definition for
``financial participant.'' It also included a provision
limiting the authority of a court or administrative agency to
stay the effect of certain exceptions from the Bankruptcy
Code's automatic stay.
Among H.R. 4393's substantive amendments to the Bankruptcy
Code were provisions revising the Bankruptcy Code's automatic
stay and setoff provisions to allow certain transactions to be
offset against each other notwithstanding the intervention of
bankruptcy. It permitted cross-product netting of certain
obligations and protected them from being set aside pursuant to
the Code's transfer avoidance provisions, absent actual fraud.
Third, the bill excepted certain asset-backed securitizations
from the types of property interests qualifying as ``property
of the estate'' under the Bankruptcy Code. H.R. 4393 treated
these transactions as valid transfers that could not be set
aside absent actual fraud.
In the Senate, legislation similar to H.R. 4393 was
included in S. 1914, the ``Business Bankruptcy Reform Act of
1998,'' sponsored by Senator Charles Grassley (R-IA). As
introduced, the Senate version, unlike its House counterpart,
primarily amended the Bankruptcy Code.
On August 5, 1998, the Banking Committee passed H.R. 4393
by voice vote without amendment and ordered the bill reported.
It thereafter filed its report on the bill (H. Rept. 105-688)
on August 21, 1998. That same day, the Committee on Commerce
was discharged. Pursuant to an agreement with the Banking
Committee, the Judiciary Committee exercised jurisdiction over
the bill until September 25, 1998.
Although neither the Subcommittee on Commercial and
Administrative Law nor the Judiciary Committee marked up H.R.
4393, a version of this bill was subsequently included in the
Conference Report on H.R. 3150, the Bankruptcy Reform Act of
1998. See prior discussion of H.R. 3150 (which includes
reference to S. 1301).
H.R. 4831, Temporary Reenactment of Chapter 12, Bankruptcy Relief for
Family Farmers
On October 14, 1998, Representative Nick Smith introduced
H.R. 4831, a bill to reenact temporarily Chapter 12, a form of
bankruptcy relief for family farmers that expired on September
30, 1998. The bill reenacted Chapter 12 for the period
beginning on October 1, 1998, through April 1, 1999. The
Subcommittee on Commercial and Administrative Law and the
Judiciary Committee did not report the bill. On October 15,
1998, the full Committee was subsequently discharged from
further consideration and the House passed H.R. 4831, as
amended, by voice vote under suspension of the rules. The bill
was received in the Senate on October 20, 1998, and was
included in the Omnibus Consolidated and Emergency Supplemental
Appropriations Act for Fiscal Year 1999, which was signed into
law as Public Law 105-277 on October 21, 1998.
STATE TAXATION
H.R. 865 and H.R. 874, State Taxation of Employees at Certain Federal
Facilities
On April 17, 1997, Subcommittee on Commercial and
Administrative Law held a hearing on H.R. 865 and H.R. 874,
bills that restricted state taxation of federal workers at
certain federal facilities. H.R. 865 (Bryant) limited the
authority of Kentucky to tax federal employees for services at
Fort Campbell, Kentucky to those who were residents of
Kentucky, while H.R. 874 (Doc Hastings) exempted Washington
residents from taxation by Oregon for services as a federal
employee at federal hydroelectric facilities located on the
Columbia River. Witnesses who testified at the hearing were:
Senator Fred Thompson; Representative Ed Bryant, Representative
Doc Hastings; Representative Linda Smith; Dwight Campbell, U.S.
Army Corps of Engineers; James D. Cunningham, National
President, National Federation of Federal Employees; Harley T.
Duncan, Executive Director, Federation of Tax Administrators;
Roger Hays, Chairman, Tax Equity Committee, United Power Trades
Organization; Worth Lovett, Federal employee at Fort Campbell;
James Charles Smith, Professor of Law, University of Georgia;
Joy E. Wilen, Joy E.Wilen Associates, Vancouver, Washington;
and Edwin Wilson, federal employee at Fort Campbell.
The facilities located on the Columbia River straddle the
state boundaries between Washington and Oregon. Residents of
Washington, which does not have a state income tax, access the
facilities from the Washington side of the river and only cross
the boundary incidental to their work. Fort Campbell sits
astride Kentucky, which has an income tax, and Tennessee, which
does not, but it is located primarily within the borders of the
latter. Tennessee residents enter the base on its Tennessee
side and do not utilize any services of Kentucky even if their
duty station is on the Kentucky side of the base.
Subsequently, Mr. Gekas introduced H.R. 1953, which
addressed the matters that were the subject of the hearing,
together with a similar situation existing at a federal
hydroelectric facility located on the Missouri River between
South Dakota and Nebraska. On June 19, 1997, the Subcommittee
reported the bill by voice vote and on July 16, 1997, the
Judiciary Committee reported the bill favorably without
amendment by voice vote (H. Rept. 105-203). On July 28, 1997,
the House agreed to H.R. 1953 by a voice vote.
The Senate Committee on Governmental Affairs held a hearing
on H.R. 1953 on October 24, 1997, but took no further action on
the bill. However, the bill was added to H.R. 3616 authorizing
appropriations for the Department of Defense, which was signed
into law by the President on October 17, 1998, as Public Law
105-261.
H.R. 1054, Internet Tax Freedom Act
On July 17, 1997, the Subcommittee on Commercial and
Administrative Law held a hearing on H.R. 1054, the Internet
Tax Freedom Act (Cox), legislation providing for a moratorium
on state taxation of the Internet. The bill had been referred
primarily to the Committee on Commerce (which had conducted a
hearing on July 11, 1997) and secondarily to the Committee on
the Judiciary. Witnesses who testified at the hearing were:
Senator Ron Wyden; Representative Christopher Cox; Stanley R.
Arnold, Commissioner, New Hampshire Department of Revenue
Administration, and President, Federation of Tax
Administrators; Howard P. Foley, President, Massachusetts High
Technology Council; Professor Walter Hellerstein, University of
Georgia, School of Law; Robert Holleyman, President, Business
Software Alliance; Kendall L. Houghton, General Counsel,
Committee on State Taxation; Andrea L. Ireland, Associate
General Counsel, Netscape Communications Corp.; Brian O'Neill,
Council Member; City of Philadelphia, PA, and First Vice
President, National League of Cities; and Jack Valenti,
President and CEO, Motion Picture Association of America.
H.R. 1054 sought to encourage the development of a
consistent and coherent national tax policy with respect to the
Internet.\1\ Sponsors argued that a moratorium on state
taxation was necessary to avoid stifling the potential for an
innovative form of technology to provide information, goods and
services quickly and cheaply throughout the world. The current
subfederal tax system, they argued, was developed in a time and
for a form of commerce that makes it inappropriate for
application to the ``electronic commerce'' which the Internet
represents.
---------------------------------------------------------------------------
\1\ The Internet is a global matrix of interconnected computer
networks communicating through the Transmission Control Protocol/
Internet Protocol, which specifies how data is subdivided in packets
and assigned to different addresses to be transferred over the
Internet. The term has been used to encompass all such data networks as
well as applications such as the World Wide Web and e-mail running on
those networks despite the fact some of these commerce activities occur
on proprietary or other networks that are not technically part of the
Internet.
---------------------------------------------------------------------------
On October 9, 1997, the Subcommittee reported an amendment
in the nature of a substitute to H.R. 1054 as a committee
print. Subsequently, the sponsor of the legislation,
Representative Cox, continued negotiations aimed at gaining the
support of the National Governors' Association, resulting in
the introduction on March 23, 1998, of H.R. 3529 (Chabot),
which was referred primarily to the Judiciary Committee.
However, that legislation failed to resolve some issues in
controversy and negotiations continued resulting in yet another
measure, H.R. 3849 (Cox), this time referred primarily to the
Commerce Committee which reported it on May 14, 1998. In
reporting H.R. 3849, the Commerce Committee did not consider
portions of the bill that were clearly within the jurisdiction
of the Judiciary Committee.
Negotiations continued and ultimately resulted in the
approval by the Judiciary Committee on June 17, 1998, of H.R.
3529 with an amendment in the nature of a substitute by voice
vote (H. Rept. 105-808, Part I). As amended, H.R. 3529 would
have imposed a 3-year moratorium on certain state and local
taxation of online services and electronic commerce. In
addition, it established an Advisory Commission on Electronic
Commerce to examine issues related to the taxation of
electronic commerce. H.R. 3529 and H.R. 3849 were reconciled by
negotiations between the Commerce and Judiciary Committees into
H.R. 4105, which was approved by the House by voice on June 23,
1997. The Senate approved a companion bill (S. 442) on October
8, 1998, by a vote of 96-2. The Senate language was
subsequently included in the Omnibus Appropriations bill which
was signed into law by the President on October 21, 1998, as
Public Law 105-277.
H.R. 4572, a Bill Clarifying that the Limitation on State Income
Taxation of Governmental Pension Income Applies to Possessions
of the United States
Representative George Gekas, Chairman of the Subcommittee
on Commercial and Administrative Law, introduced H.R. 4572,
together with cosponsors Representatives Bill McCollum and John
Mica, on September 15, 1998. This bill would have simple
amended section 114(b)(1)(G) of title 4 of the United States
Code to correct a technical error concerning its applicability
to possessions of the United States, such as the Commonwealth
of Puerto Rico. H.R. 4572 clarified that the prohibition
against a State taxing governmental pension income of its
former citizens applied to possessions of the United States.
Specifically, it provided that governmental plans of
possessions of the United States were to be treated as if they
were State governmental plans within the meaning of Section
414(d) of the Internal Revenue Code. While the clear
legislative intent of Section 114 was to have it apply to
Puerto Rico as demonstrated by its reference to ``possessions
of the United States,'' the provision's incorporation of the
Internal Revenue Code's definition of ``governmental plan''
(which does not include Puerto Rico) created a legislative
glitch that H.R. 4572 corrected.
Following its introduction by Mr. Gekas, the bill was
passed by the Subcommittee without amendment by voice vote on
September 25, 1998. On October 15, 1998, H.R. 4572 was called
up by the House under suspension of the rules and was passed by
voice vote without amendment. The bill was received in the
Senate on October 20, 1998. The Senate took no further action
on the bill prior to its adjournment on October 21, 1998.
INTERSTATE COMPACTS
The Subcommittee considered a number of interstate compacts
which under the Constitution the Congress must approve.
H.J. Res. 91--The Apalachicola-Chattahoochee-Flint River Basin Compact
(ACF)
On October 23, 1997, held a hearing on and favorably
reported H.J. Res. 91, granting consent of the Congress to a
compact between the states of Alabama, Florida and Georgia with
the United States concerning the Apalachicola-Chattahoochee-
Flint River Basin located within these states. Witnesses who
testified at the hearing were: Representative Bob Barr and
Representative Allen Boyd.
The three states had for some time been negotiating over
allocation of the waters of the ACF Basin and had initiated
litigation in federal court to prevent the U.S. Army Corps of
Engineers from reallocating storage in Federal reservoirs
without completing adequate environmental assessments.
Thereafter, the three states and the Corps of Engineers,
seeking to negotiate and resolve the issue, agreed that a
comprehensive study needed to be conducted by a partnership of
the three states and the federal government. In 1992, the three
states adopted a Memorandum of Agreement concerning the ACF
Basin which resulted ultimately in a compact adopted by each of
the states in 1997.
On October 29, 1997, the Judiciary committee reported H.J.
Res. 91 by voice vote (H. Rept. 105-369). The House adopted
H.J. Res. 91 on November 4, 1997. The Senate passed the joint
resolution on November 7, 1997, and the President signed it
into law as Public Law 105-104 on November 20, 1997.
H.J. Res. 92--The Alabama-Coosa-Tallapoosa River Basin Compact (ACT).
On October 23, 1997, the Subcommittee held a hearing on and
reported H.J. Res. 92, granting the consent of the Congress to
the Alabama-Coosa-Tallapoosa River Basin Compact between the
states of Alabama and Georgia. Witnesses who testified at the
hearing were: Peter D. Coppelman, Deputy Assistant Attorney
General, Environment & Natural Resources Division, U.S.
Department of Justice; G. Robert Kerr, Director, Pollution
Prevention Assistance Division, Georgia Department of Natural
Resources, State of Georgia, accompanied by Harold Reheis,
Director, Environmental Protection Division, Georgia Department
of Natural Resources, State of Georgia; Walter B. Stevenson,
Director, Office of Water Resources, State of Alabama; and
Douglas E. Barr, Executive Director, Northwest Florida Water
Management District, State of Florida.
The circumstances that led to the development of the ACT
River Basin Compact were similar to those that brought about
the ACF River Basin Compact except that the former river basin
was located within Georgia and Alabama. The two states adopted
the ACT Compact during their 1997 legislative sessions.
On October 29, 1997, the Judiciary Committee reported H.J.
Res. 92 favorably by voice vote (H. Rept. 105-370). The House
approved the joint resolution on November 4, 1997, and the
Senate concurred on November 7, 1997. The President signed the
joint resolution into law as Public Law 105-105.
H.J. Res. 95--The Chickasaw Trail Economic Development Compact
On October 23, 1997, the Subcommittee held a hearing on and
reported H.J. Res. 95 favorably by voice vote. Witnesses who
testified at the hearing were: Representative Ed Bryant,
Representative Roger F. Wicker and Michael Thornton, Project
Director, Chickasaw Trail Economic Development Compact.
H.J. Res. 95 granted the consent of Congress to the
Chickasaw Trail Economic Development Compact entered into
between the states of Tennessee and Mississippi. The compact
sought to promote economic development in a rural area near
Memphis, Tennessee that includes portions of Fayette County,
Tennessee and Marshall County, Mississippi. It created an
Authority whose task it will be to conduct studies and surveys
of the problems, benefits, and other matters associated with
the development of the area described in the compact, and to
report thereon. It is anticipated that, upon a favorable report
by the authority, the States would negotiate a new compact to
provide for establishment of a 4,000 to 5,000 acre industrial
park.
On October 29, 1997, the Judiciary Committee reported H.J.
Res. 95 by voice vote (H. Rept. 105-389). The House approved
the joint resolution by voice vote on November 12, 1997, and
the Senate concurred on November 13, 1997. The President signed
the measure into law as Public Law 105-145 on December 15,
1997.
H.J. Res. 96--Amendments to the Washington Metropolitan Area Transit
Regulation Compact
On October 23, 1997, the Subcommittee held a hearing on and
reported by voice vote H.J. Res. 96, granting the consent of
Congress to amendments to the Washington Metropolitan Area
Transit Regulation Compact. Witnesses who testified at the
hearing were: Representative Thomas M. Davis and Jack Evans,
Chairman & Board of Directors, Washington Metropolitan Area
Transit Authority, accompanied by Chief Barry J. McDevitt,
Washington Metropolitan Area Transit Authority.
The compact was adopted by Maryland, Virginia and the
District of Columbia in 1967. It established the Washington
Metropolitan Area Transit Authority (WMATA) to plan, finance,
construct and operate a comprehensive public transit system for
metropolitan Washington. In addition to a subway system
connecting the three jurisdictions, WMATA administers an
extensive surface transportation system throughout the area.
Since its inception, the compact had been amended five times.
Authorization to create the Metro Transit Police Department was
signed into law in 1976 by President Ford.
The amendments contained in H.J. Res. 96 included: changes
to requirements concerning public hearings consistent with
federal regulations governing other transit agencies;
permitting off-duty transit police to carry Authority-issued
weapons subject to restrictions imposed on police officers by
each jurisdiction; and clarification of the process by which
certain WMATA regulations are adopted.
On October 29, 1997, the Judiciary Committee reported H.J.
Res. 96 by voice vote (H. Rept. 105-396). On November 12, 1997,
the House approved the joint resolution and the Senate
concurred on November 13, 1997. The President signed it into
law as Public Law 105-151 on December 16, 1997.
S. 1134--Interstate Forest Fire Protection Compact
On October 15, 1998, the House discharged the Judiciary
Committee from further consideration of, and passed, S. 1134
(Murray) under suspension of the rules. The bill granted the
consent of Congress to a compact to be entered into by Oregon,
Washington, Alaska, Idaho, Montana, the Yukon Territory, the
provinces of British Columbia and Alberta implementing the
Northwest Wildland Fire Protection Agreement. The agreement is
intended to promote effective prevention, suppression and
control of forest fires in the Northwestern United States and
adjacent areas of Canada by the development of mutual aid among
the signatories. The bill was passed by the Senate on July 30,
1998, unanimously and was referred the Subcommittee on August
7, 1998. It was taken to the House floor directly without
subcommittee or committee action. The President signed the bill
into law as Public Law 105-377 on November 12, 1998.
S.J. Res. 35--The Pacific Northwest Emergency Management Arrangement
On October 15, 1998, the House discharged the Judiciary
Committee from further consideration of, and passed, S.J. Res.
35 (Craig) under suspension of the rules. The joint resolution
granted the consent of Congress to the Pacific Northwest
Emergency Management Arrangement entered into between Alaska,
Idaho, Oregon, and Washington, as well as the province of
British Columbia and the Yukon Territory. The agreement seeks
to encourage collective assistance among the signatories by
providing for emergency planning management. The bill passed
the Senate unanimously on July 31, 1998, and was referred to
the Subcommittee on August 7, 1998. It was taken to the House
directly without subcommittee or committee action. The
President signed the joint resolution into law as Public Law
105-381 on November 12, 1998.
S.J. Res. 51--The Potomac Highlands Airport Authority Compact
On September 25, 1998, the Subcommittee held a hearing on
and reported by voice vote S.J. Res. 51, granting the consent
of the Congress to the Potomac Highlands Airport Authority
Compact entered into by Maryland and West Virginia. Witnesses
who testified at the hearing were: Senator Paul S. Sarbanes and
Representative Roscoe G. Bartlett, accompanied by James G.
Stahl, Chairman, Potomac Highlands Airport Authority,
Cumberland Regional Airport, Wiley Ford, West Virginia.
The PHAA compact governs the operation, use, management and
development of the Greater Cumberland Regional Airport located
in Mineral County, West Virginia. The airport was established
in 1944 when the city of Cumberland, Maryland purchased
property in Wiley Ford, West Virginia, three miles to its
south, and constructed aviation facilities. This was an unusual
situation--a commercial service airport located in one state
but owned by a local unit of government in another state. With
two states, two counties, and two municipalities having
jurisdiction over various aspect of the airport, the General
Assemblies of Maryland and West Virginia enacted a bi-state
compact in 1976 authorizing creation of the Potomac Highlands
Airport Authority to govern and operate the airport.
Congressional approval of the compact was not sought at that
time and no action was taken to implement the compact until
1990 when the various interested governmental units signed an
agreement to transfer airport management and control to the
Authority.
Since 1990, the PHAA has operated the airport and has been
attempting to implement a 20-year, $10 million modernization
and expansion program to help service a three-state region that
includes, in addition to Maryland and West Virginia, an area of
Pennsylvania. In the process of seeking investment capital,
loans and airport development grants, the PHAA had confronted
questions from the Federal Aviation Administration, USDA Rural
Development and other about its eligibility to function as the
legal sponsor for the airport and borrow money and give
security absent Congressional consent to the compact which
established the authority.
The Senate had approved S.J. Res. 51 unanimously on August
3, 1998. The House concurred on October 9, 1998. The President
signed the joint resolution into law as Public Law 105-348 on
November 2, 1998.
MISCELLANEOUS
H.R. 872, Biomaterials Access Assurance Act of 1998
Chairman Gekas introduced the Biomaterials Access Assurance
Act with 27 original co-sponsors on February 27, 1997. A
companion bill (S. 364) was introduced in the Senate by Senator
Lieberman. Nearly identical legislation (Title II of S. 648)
was reported favorably by the Senate Commerce Committee on May
1, 1997. H.R. 872 was jointly referred to the Judiciary
Committee and the Commerce Committee.
Biomaterials are the substances and component parts that go
into medical implants and devices, which are used by millions
of Americans. Many biomaterials suppliers have ceased supplying
raw materials and component parts for use in medical devices
and implants because the costs associated with litigation
exceed the benefits of sales to the medical market.
The Biomaterials Access Assurance Act creates a limited
protection from liability for products provided by entities
falling within the definition of ``biomaterials supplier.''
Three major exceptions to this protection cause the Act's
protections to follow the contours of the common law in most
states. A biomaterials supplier loses the protection of the Act
if (a) it is the manufacturer of a medical device, (b) it is
the seller of a medical device, or (c) the biomaterials
supplier failed to meet contractual and other specifications.
In addition to its limited protection from liability, the
Biomaterials Access Assurance Act creates expedited court
procedures for determining whether a biomaterials supplier
defendant is protected by the Act. A defendant asserting such
protection may file a motion to dismiss alleging that it is a
biomaterials supplier not subject to any exception. The motion
to dismiss in most cases is decided on affidavits and discovery
is limited during pendency of the motion.
The Subcommittee held a hearing on the bill on June 12,
1997. Witnesses who testified at the hearing were: Neil
Kahanovitz, M.D., founder, Center for Patient Advocacy; Rita
Bergmann, patient, Clarksburg, Maryland; Randy Markey, patient,
Newton, Massachusetts; Stephen D. Kaiser, patient, Baltimore,
Maryland; Donald P. Doty, patient, Minnetonka, Minnesota;
Kenneth M. Kent, M.D., Director, Washington Cardiology Center,
Washington, D.C.; Ronald J. Greene, Esq.; Wilmer, Cutler &
Pickering, representing the Health Implant Manufacturers
Association, Washington, D.C.; James E. Brown, Vice President,
Biopharmaceutical and Implant R&D, ALZA Corporation, Palo Alto,
California; Dane A. Miller, Ph.D., President and CEO, BioMet,
Inc., Warsaw, Indiana; Dr. Jorge Ramirez, Hoechst-Celanese,
League City, Texas; and Professor Mark McLaughlin Hager,
Washington College of the Law, American University, Washington,
D.C.
On September 11, 1997, the Subcommittee adopted an
amendment in the nature of a substitute offered by Chairman
Gekas and reported the amended bill favorably by voice vote to
the full Committee. On April 1, 1998, the full Committee
ordered H.R. 872 favorably reported with two en bloc amendments
offered by Chairman Gekas (H. Rept. 105-549). The bill was
passed by both the House and Senate on the same day, July 30,
1998, and was signed into law, (Public Law 105-230), on August
13, 1998.
H.R. 1494, Apprehension of Tainted Money Act
H.R. 1494, the Apprehension of Tainted Money Act, was
introduced by Chairman Gekas on April 30, 1997. The
Subcommittee held a hearing on the bill on May 14, 1997.
Witnesses who testified at the hearing were: Robert S. Litt,
Deputy Assistant Attorney General, Department of Justice;
Lawrence M. Noble, General Counsel, Federal Election
Commission; William B. Canfield III, Esq., Williams & Jensen;
Kenneth A. Gross, Esq., Skadden, Arps, Slate, Meagher & Flom;
and Larry Klayman, Esq., Chairman, Judicial Watch, Inc.
The bill was introduced in response to allegations of
illegality in federal campaign fund-raising and giving during
the 1996 election cycle. Numerous illegal and ``improper''
contributions were returned, and additional return of
contributions was pledged, to the parties making the illegal or
suspect contributions. This created concern that individuals
who tried illegally to influence federal elections may be
unjustly rewarded with return of the money they illegally used.
This is a particular concern in cases where an election has
intervened between the giving of the contribution and its
return.
The Federal Election Campaign Act of 1971, as amended,
prohibits certain types of contributions, including
contributions by foreign nationals and contributions given in
the name of another. Political committees must examine
contributions for evidence of illegality and conformity to
contribution limitations. Under current law and regulation,
illegal contributions are returned to the individuals who made
them. Contributions that a political committee discovers to be
illegal based on evidence not available at the time of receipt
must be returned (within 30 days of discovery) to the
contributor.
H.R. 1494 would have tied up illegal and so-called
``improper'' campaign contributions that a political committee
returns after the ordinary time for returning contributions. If
a political committee belatedly returned a large campaign
contribution, it would have to transfer the money to the
Federal Election Commission. The Commission would hold the
money, notify the Attorney General, and investigate whether the
contribution was from a foreign source, was made in the name of
another, or was otherwise illegal. The Commission or the
Attorney General could require this tainted money to be
forfeited or applied to fines and penalties against illegal
contributors. The Commission would have to return a
contribution if it planned not to use the money, if there was
money left over after fines and penalties, or if there was no
public investigation for more than 120 days.
H.R. 1494 was not marked up in the Subcommittee. A version
of it was attached as an amendment to H.R. 2183, the Bipartisan
Campaign Reform Act of 1998 (Shays/Meehan), which passed the
House on August 6, 1998. That legislation was not considered in
the Senate.
H.R. 3032, Construction Subcontractors Payment Protection Enhancement
Act of 1998
On September 11, 1998, the Subcommittee conducted a joint
legislative hearing with the Government Reform and Oversight
Subcommittee on Government Management, Information, and
Technology on H.R. 3032, the Construction Subcontractors
Payment Protection Enhancement Act of 1998. Witnesses who
testified at the hearing were: Deidre A. Lee, Administrator,
Federal Procurement Policy, Office of Management and Budget;
Fred Levinson, President, Levinson & Santoro Electric
Corporation; Robert E. Lee, President, Lee Masonry,
representing the American Subcontractors Association; Andrew
Stephenson, Contracts Partner, Holland & Knight, representing
the Associated General Contractors; and Lynn M. Schubert,
President, Surety Association of America, also representing the
American Insurance Association and the National Association of
Surety Bond Producers.
H.R. 3032 was introduced by Representative Carolyn B.
Maloney on November 12, 1997, and referred to the Committees on
the Judiciary and Government Reform and Oversight. The bill
makes a number of amendments to the Miller Act, which requires
the submission of performance and payment bonds by prime
contractors on federal construction projects. The Act also
specifies the manner in which claims can be brought under such
bonds in the U.S. District Courts.
H.R. 3032 would have amended the Office of Federal
Procurement Policy Act relating to federal contract payment
policies and the Miller Act to provide broader payment
protections for subcontractors and suppliers furnishing labor
and materials in performance of a federal construction
contract. As characterized by the bill's proponents, H.R. 3032
would have made explicit the responsibility of the
Administrator for Federal Procurement Policy to (a) establish
government-wide policies assuring timely payment of federal
contractors, subcontractors, and suppliers, and (b) assure that
the Federal Acquisition Regulation implements the various
statutes providing for timely payment; required the amount of
the payment bond equal to the performance bond; extended the
Miller Act's protections to progress payments (periodic
payments made by the government to prime contractors during the
term of performance), which flow down to subcontractors and
suppliers for work performed; extended the Miller Act's payment
protections to subcontractors and suppliers at all tiers;
established standards relating to waivers of Miller Act payment
bond protection by subcontractors or suppliers; allowed notice
of payment bond suits by means other than registered mail,
including future electronic means; accelerated the resolution
of claims for non-payment by permitting subcontractors and
suppliers to bring suit under the payment bond any time after a
payment claim has been denied (rather than having to wait 90
days after last supplying labor or materials as currently
required by the Act); and authorized U.S. District Courts to
award attorneys fees, court costs, and interest to a prevailing
payment bond claimant to (a) discourage raising of groundless
defenses, and (b) restore the Act's payment protection for
meritorious small claims (under $100,000 in dispute), which
would otherwise be foreclosed simply by the cost of litigation.
No markup of H.R. 3032 was held.
H.R. 4243 and H.R. 4857, Government Waste, Fraud, and Error Reduction
Act of 1998
As introduced by Representative Steve Horn on July 16,
1998, H.R. 4243 was intended to reduce waste, fraud, and error
in Government programs by making improvements with respect to
Federal management and debt collection practices, Federal
payment systems, and Federal benefit programs. In addition to
the Committee on Government Reform and Oversight, it was
referred to the Committees on the Judiciary and the Committee
on Ways and Means.
The Government Reform and Oversight Committee ordered H.R.
4243 reported as amended. On August 26, 1998, it was referred
to Subcommittee on Commercial and Administrative Law. No markup
of H.R. 4243 was held by either the Subcommittee or the
Judiciary Committee. On October 14, 1998, the bill was passed
as amended by voice vote in the House under suspension of the
rules and the Judiciary Committee was discharged. The bill was
received in the Senate on the following day.
On October 20, 1998, Representative Horn introduced a
modified version of the bill as H.R. 4857, which did not
include certain provisions of H.R. 4243 pertaining to the
integrity of federal benefit verification. It was referred to
the Subcommittee on Commercial and Administrative Law of the
Judiciary Committee on that same day. No markup of H.R. 4857
was held by either the Subcommittee or the Judiciary Committee.
After the Committee on the Judiciary was discharged by
unanimous consent, H.R. 4857, as amended, passed the House by
voice vote. The bill was received in the Senate on the
following day and no further action was taken.
Oversight Activities
ADMINISTRATIVE LAW, PRACTICE AND PROCEDURES
Administrative Crimes and Quasi-Crimes
On May 7, 1998, the Subcommittee held a hearing titled
``Administrative Crimes and Quasi-Crimes.'' Witnesses who
testified at the hearing were: Robert W. ``Bobby'' Unser,
Albuquerque, New Mexico; George O. Krizek, M.D. and Blanka
Krizek, Washington, D.C.; Steven A. Goodman, JSG Trading Corp.,
Tinton Falls, New Jersey; Jane M. Orient, M.D., Association of
American Physicians and Surgeons, Tucson, Arizona; James V.
DeLong, Regulatory Policy Center, and Adjunct Scholar,
Competitive Enterprise Institute, Washington, D.C.; Roger J.
Marzulla (former United States Assistant Attorney General for
Environment and Lands), Marzulla & Marzulla, Washington, D.C.;
and Professor Jonathan Turley, The George Washington University
Law School, Washington, D.C.
``Administrative crimes or quasi-crimes'' are a range of
activities for which agencies or federal law enforcers seek
punitive sanctions against citizens based on their violation of
a regulation. Whether explicitly denominated ``civil'' or
``criminal,'' such an enforcement action was called an
``administrative crime'' for purposes of the hearing if the
remedy sought goes beyond that of compensating the government
or the public for wrongs allegedly done. The witnesses and
their cases were intended to illustrate important questions
about the nature and scope of criminal regulations, the effect
of civil punishment on regulated entities and individuals, and
how administrative actions affect regulated entities and
individuals.
The hearing led Chairman Gekas to introduce H.R. 4049, the
Regulatory Fair Warning Act.
Administrative Taxation: The FCC's Universal Service Tax
On February 26, 1998, the Subcommittee held a hearing
titled ``Administrative Taxation: the FCC's Universal Service
Tax.'' Witnesses who testified at the hearing were: James
Glassman, DeWitt-Wallace-Readers Digest Fellow in
Communications, American Enterprise Institute; Julia Johnson,
Esq., Chairman, Florida Public Service Commission; Grover G.
Norquist, President, Americans for Tax Reform; James Miller
III, Counselor, Citizens for a Sound Economy; Dr. John E.
Berthoud, President, National Taxpayers Union; and Christopher
A. McLean, Deputy Administrator, Rural Utilities Service,
Department of Agriculture.
The clearest example of administrative taxation is the
Federal Communications Commission's Universal Service Tax.
``Universal service'' is the idea that everyone should have
access to affordable telecommunications services. It originated
at the beginning of the century when the nation was still being
strung with telephone wires. The Telecommunications Act of 1996
included provisions that allowed the FCC to extend universal
service, ensuring that telecommunications are available to all
areas of the country and to institutions that benefit the
community, like schools, libraries, and rural health care
facilities.
Notably, the Telecommunications Act gave the FCC the power
to decide the level of ``contributions''--taxes--that long-
distance providers would have to pay to support universal
service. The FCC now determines how much can be collected in
taxes to subsidize a variety of ``universal service'' programs.
It charges long-distance providers, who pass the costs on to
consumers in the form of higher telephone bills. The amount
collectible to support schools and libraries began at $2.25
billion per year and the amount for health care providers was
$400 million per year. Currently, the level of tax collections
is $1.4 billion dollars per year. The FCC's order implementing
the universal service provisions raised a variety of other
legal and policy questions.
The hearing led to the introduction of H.R. 4096, the
Taxpayer's Defense Act, by Chairman Gekas.
Congressional Review Act
On March 6, 1997, the Subcommittee on Commercial and
Administrative Law held an oversight hearing on the operation
of the Congressional Review Act. That Act, signed into law on
March 29, 1996, was contained in Subtitle E of Title II of the
Contract With America Advancement Act (Public Law 104-121) and
provided that agencies must submit new rules to Congress prior
to their going into effect, together with timetables for both
Houses of the Congress to consider resolutions of disapproval
for such rules.
The Congressional Review Act resulted from a desire for a
more active Congressional role in the oversight and control of
a rapidly growing body of administrative rules.\2\ Congress has
historically employed various means to assert its authority
over agencies. A popular method, particularly from the early
1970's through 1983 was the ``legislative veto'' under which an
enabling statute sometimes provided that rules promulgate under
it were subject to reversal if one or both of the Houses passed
a resolution repealing the Executive Branch's action. In 1983,
however, the Supreme Court struck down the legislative veto in
INS v. Chadha, 462 U.S. 919, on the grounds that when Congress
acted ``legislatively,'' it had to conform to the dictates of
the bicameral requirement and the Presentment Clause. (Article
1, section 7, clause 2 of the United States Constitution).
Because the legislative veto was a legislative act that did not
adhere to these provisions, it violated the Constitutional
design for the separation of powers. In recognition of Chadha,
the Congressional Review Act requires that rules be disapproved
by a joint resolution of both Houses, which is then presented
to the President. It thus follows the approach taken in the
Rules Enabling Act (28 U.S.C. 2072 et seq.), under which the
Supreme Court has for many years promulgated rules of practice
and procedure and rules of evidence for the federal courts
which are subject to disapproval by the Congress following the
ordinary legislative process.
---------------------------------------------------------------------------
\2\ Between 1987 and 1990, agencies promulgated 160 final major
rules. During the next 4 years, that number had increased to 241.
---------------------------------------------------------------------------
After enactment of the Congressional Review Act, 2,120
rules had been filed and noted in the Congressional Record
pursuant to the Act's requirement in the 104th Congress, while
1,318 rules had been filed as of February 28, 1997, in the
105th Congress. Of these, 11 had been designated as major rules
in the 104th Congress and 22 in the 105th Congress.
The hearing sought to explore the rationale behind the Act,
to determine how it is understood and applied by the officers
of the House of Representatives and to establish to what extent
to its provisions were being adhered to by the agencies.
Witness who testified at the hearing were: Robert P.
Murphy, General Counsel, General Accounting Office; Sally
Katzen, Administrator, Office of Information and Regulatory
Affairs, Office of Management and Budget; Jonathan Z. Cannon,
General Counsel, U.S. Environmental Protection Agency; Nancy E.
McFadden, General Counsel, U.S. Department of Transportation;
C. Boyden Gray, Esquire, former White House Counsel, partner,
Wilmer, Cutler & Pickering; Peter L. Strauss, Betts Professor
of Law, Columbia University; Richard J. Pierce, Jr., Lyle T.
Alverson Research Professor of Law, George Washington
University; Charles W. Johnson, III, Parliamentarian, U.S.
House of Representatives; Thorne Auchter, Executive Director,
Center for Regulatory Effectiveness; and Angela Antonelli,
Deputy Director of Economic Policy Studies, Heritage
Foundation.
EPA's Rulemakings on National Ambient Air Quality Standards for
Particulate Matter and Ozone
On July 18, 1997, the Environmental Protection Agency
published final rules setting national ambient air quality
standards for particulate matter and ozone. The process
undertaken to develop the rules, and the rules themselves,
engendered significant debate.
The Clean Air Act requires the EPA to promulgate national
air quality standards and review them every 5 years. Under a
court-ordered, accelerated review of the standard for
particulate matter, the EPA decided to revise the standards for
particulate matter and ozone. In promulgating the new
standards, the EPA found itself not subject to the Regulatory
Flexibility Act, the Small Business Regulatory Enforcement
Fairness Act, and the Unfunded Mandates Reform Act, though it
did comply with President Clinton's Regulatory Executive Order.
The EPA's findings as to the administrative procedures found in
these laws, and the interplay between those procedures and the
Clean Air Act, were the focus of the hearing.
The Subcommittee held the hearing on July 29, 1997.
Witnesses who testified were: Representative Fred Upton;
Representative Rick Boucher; Fred Hansen, Deputy Administrator,
Environmental Protection Agency; Brian Flaherty, Connecticut
State Representative, National Conference of State
Legislatures; Allen Schaeffer, Vice President, Environmental
Affairs, American Trucking Associations; Richard L. Russman,
Esq., New Hampshire State Senate; Ron Klink; George Wolff,
Ph.D., Principal Scientist, Corporate Affairs Staff, General
Motors Corporation; Randy Johnson, Hennepin County (MN)
Commissioner, President, National Association of Counties;
George D. Thurston, Sc.D., Associate Professor, New York
University School of Medicine, Institute of Environmental
Medicine.
Oversight of the Executive Office for United States Attorneys, the
Environment and Natural Resources Division of the Department of
Justice, and the Executive Office for United States Trustees.
On February 25, 1998, the Subcommittee held a hearing on
three offices within the Department of Justice over which it
has oversight jurisdiction: the Executive Office for United
States Attorneys, the Environment and Natural Resources
Division, and the Executive Office for United States Trustees.
Witnesses who testified at the hearing were: Donna A. Bucella,
Director, Executive Office for U.S. Attorneys, U.S. Department
of Justice; Karen F. Schreier, U.S. Attorney for the District
of South Dakota, Vice Chairman, Attorney General's Advisory
Committee for U.S. Attorneys, U.S. Department of Justice; Lois
Schiffer, Assistant Attorney General, Environment & Natural
Resources Division, U.S. Department of Justice; and Joseph
Patchan, Director, Executive Office for the U.S. Trustees, U.S.
Department of Justice.
The hearing gave an opportunity for the Department of
Justice representatives to describe the workings of their
respective offices, the plans each had for the future and the
progress they had made towards achieving their goals. Each,
moreover had the opportunity to share with the Subcommittee the
amounts and justification for their authorization requests.
Role of Congress in Monitoring Administrative Rulemaking
On September 25, 1997, the Subcommittee held a hearing on
the role of Congress in monitoring administrative rulemaking.
Though an oversight hearing, it was framed around two bills:
the Congressional Responsibility Act of 1997 (H.R. 1036;
Hayworth) and the Congressional Office of Regulatory Analysis
Creation Act (H.R. 1704; Kelly). Witnesses who testified at the
hearing included the bills sponsors, Senator Sam Brownback;
Representative J.D. Hayworth; and Representative Sue W. Kelly,
as well as Professor Marci A. Hamilton, Benjamin N. Cardozo
School of Law; Craig Brightup, Director of Government
Relations, National Roofing Contractors Association; and Todd
Robbins, Staff Attorney, U.S. Public Interest Research Group
(U.S. PIRG).
The role of Congress in monitoring administrative
rulemaking flows from its constitutional power to organize the
executive branch and to make all laws for carrying into
execution the powers of the United States government. Congress
writes both the organic and procedural laws that guide agencies
and it possesses inherent power to oversee all their
activities.
To retain direct control of the regulatory process,
Congress used the legislative veto for most of this century.
The legislative veto allowed one or both Houses of Congress to
negate an agency action by passing a simple resolution which
did not require the President's signature. When overturned by
the Supreme Court's decision in INS v. Chadha, 462 U.S. 919,
there were as many as 295 legislative veto-type procedures
written into federal law.
Improving the regulatory process and asserting
Congressional authority over it continued to be interests of
members in the 105th Congress. Senators Levin and Thompson
introduced the Regulatory Improvement Act (S. 981), which was
aimed at improving the regulatory process. Two bills within the
Subcommittee's jurisdiction focused on asserting Congressional
authority: H.R. 1036, the ``Congressional Responsibility Act''
(Hayworth); and H.R. 1704, the ``Congressional Office of
Regulatory Analysis Creation Act'' (Kelly).
On February 25, 1998, the Subcommittee ordered favorably
reported H.R. 1704 in the form of an amendment in the nature of
a substitute. On March 3 and 4, 1998, the full Committee
ordered favorably reported the bill H.R. 1704 in the form of an
amendment in the nature of a substitute (H. Rept. 105-441, Part
I). The bill was not considered by the full House.
BANKRUPTCY
Status Report from the National Bankruptcy Review Commission and
Operation of the Bankruptcy System
On April 16, 1997, the Subcommittee held a combined
oversight hearing on the National Bankruptcy Review Commission
and the operation of the bankruptcy system. The hearing
provided a forum where representatives from the National
Bankruptcy Review Commission and the bankruptcy community could
provide an update on the Commission's work and an overview of
the bankruptcy system.
The portion of the hearing concerning the Commission served
to provide the Subcommittee with an interim indication of the
issues it would need to consider upon completion of the
Commission's work. In connection with this portion of the
hearing, the Subcommittee heard from Brady Williamson,
Commission Chairman; Stephen Case, a partner with Davis, Polk
Wardwell, a law firm; and Leonard Rosen, a partner with
Wachtell, Lipton, Rosen & Katz, a law firm.
The National Bankruptcy Review Commission was an
independent commission established pursuant to the Bankruptcy
Reform Act of 1994, Public Law 103-394, 108 Stat. 4106. The
Commission was created to: (1) investigate and study issues
relating to the Bankruptcy Code; (2) solicit divergent views of
parties concerned with the operation of the bankruptcy system;
(3) evaluate the advisability of proposals with respect to such
issues; and (4) prepare a report to be submitted to the
President, Congress and the Chief Justice not later than 2
years from October 20, 1995, the date of the Commission's first
meeting. The report was required to contain a detailed
statement of the Commission's findings and conclusions together
with recommendations for legislative or administrative action.
The House Report accompanying the legislation establishing the
Commission stated that Congress was ``generally satisfied with
the basic framework established in the current Bankruptcy
Code'' and advised the Commission to focus on ``reviewing,
improving, and updating the Code in ways which do not disturb
the fundamental tenets of current law.''
The nine-member Commission was authorized to conduct public
meetings and empowered to obtain official data from any federal
agency, department or court necessary to the implementation of
its duties. Among the topics that the Commission considered
were case administration, consumer bankruptcy, environmental
matters, business bankruptcy, issues relating to tax, banking,
insurance, mass torts and future claims, municipal
bankruptcies, and international insolvencies.
The second portion of the hearing was devoted to a general
overview of the bankruptcy system. Witnesses who testified
during this part of the hearing included Charles Tatelbaum,
Vice President for Research, American Bankruptcy Institute; and
Honorable George Paine, Chief Bankruptcy Judge for the Middle
District of Tennessee, on behalf of the National Conference of
Bankruptcy Judges. Issues discussed included the need for
consumer and business bankruptcy reform, abuse in the current
bankruptcy system, potential causes of increased bankruptcy
filings, and the treatment of exempt property, among other
matters.
National Bankruptcy Review Commission Report
On November 13, 1997, the Subcommittee on Commercial and
Administrative Law conducted an oversight hearing on the Report
of the National Bankruptcy Review Commission. Witnesses who
testified at this hearing included Brady Williamson, Commission
Chairman; Babette Ceccotti, Commission Member; Honorable Edith
Hollan Jones, United States Court of Appeals Judge from the
Fifth Circuit and Commission Member.
As noted above, the National Bankruptcy Review Commission
was charged pursuant to its enabling statute to prepare a
detailed report of its findings and conclusions together with
recommendations for legislative or administrative reform
regarding bankruptcy law and practice. The Commission's Report,
filed on October 20, 1997, contained 172 recommendations.
Subcommittee Chairman Gekas, in his opening statement,
observed that the Commission's report would be central to any
bankruptcy legislation would follow. He noted that the use of
credit had become an addiction for many consumers and that the
current bankruptcy system failed to require individuals to take
sufficient personal responsibility. Mr. Gekas explained that
the ease by which consumers can have their debts forgiven under
the bankruptcy laws led to higher prices and interest rates
that had to be paid by those who were fiscally responsible. He
described his intention to introduce comprehensive legislation
that would reestablish the balance between creditor and debtor
interests and encourage greater personal responsibility among
consumers.
Subcommittee on Courts and Intellectual Property
HOWARD COBLE, North Carolina,
Chairman
BARNEY FRANK, Massachusetts F. JAMES SENSENBRENNER, Jr.,
JOHN CONYERS, Jr., Michigan Wisconsin
HOWARD BERMAN, California ELTON GALLEGLY, California
RICK BOUCHER, Virginia BOB GOODLATTE, Virginia
ZOE LOFGREN, California SONNY BONO, California \1\
WILLIAM D. DELAHUNT, Massachusetts EDWARD A. PEASE, Indiana
CHRIS CANNON, Utah
BILL McCOLLUM, Florida
CHARLES T. CANADY, Florida
JAMES E. ROGAN, California\2\
MARY BONO, California\3\
----------
\1\ Sonny Bono, California, deceased January 5, 1998.
\2\ James E. Rogan, California, assigned March 3, 1998, to fill the
vacancy resulting from the death of Sonny Bono, California.
\3\ Mary Bono, California, assigned June 17, 1998.
Tabulation and disposition of bills referred to the Subcommittee
Legislation referred to the Subcommittee.......................... 101
Legislation reported favorably to the full Committee.............. 21
Legislation reported adversely to the full Committee.............. 0
Legislation reported without recommendation to the full Committee. 0
Legislation reported as original measure to the full Committee.... 2
Legislation discharged from the Subcommittee...................... 1
Legislation pending before the full Committee..................... 1
Legislation reported to the House................................. 24
Legislation discharged from the Committee......................... 6
Legislation pending in the House.................................. 5
Legislation passed by the House................................... 26
Legislation pending in the Senate................................. 6
Legislation vetoed by the President (not overridden).............. 0
Legislation enacted into public law............................... 11
Legislation enacted into public law as part of another measure.... 20
Legislation on which hearings were held........................... 23
Days of hearings (legislative and oversight)...................... 36
Private legislation referred to the Subcommittee.................. 2
Private legislation pending in the Subcommittee................... 2
Jurisdiction of the Subcommittee
The Subcommittee has legislative and oversight
responsibility for (1) the intellectual property laws of the
United States (including authorizing jurisdiction over the
Patent and Trademark Office of the Department of Commerce and
the Copyright Office of the Library of Congress); and (2)
Article III Federal courts (including authorizing jurisdiction
over the Administrative Office of the United States Courts, the
Judicial Conference of the United States, and the Federal
Judicial Center); the Federal Rules of Evidence and Civil and
Appellate Procedure; and judicial discipline and misconduct.
Legislative Activities
COURTS
The Judicial Reform Act of 1997, H.R. 1252
Introduced by Chairman Hyde, Mr. Coble, Mr. Canady of
Florida, Mr. Bono, Mr. Bryant, Mr. Goodlatte, Mr. Manzullo, Mr.
Riggs, and Mr. Sensenbrenner, H.R. 1252 constitutes a
restrained legislative response to specific examples of unfair
practices and procedures, many of which violate the separation-
of-powers doctrine, that exist in the federal court system.
The Subcommittee held a legislative hearing on H.R. 1252 on
May 14, 1997, and an oversight hearing on the related issue of
judicial misconduct on May 15, 1997. Testimony at the May 14
hearing was received regarding H.R. 1252 from the following
witnesses: Chairman Henry Hyde, U.S. Representative, 6th
District of Illinois; The Honorable Ed Bryant, U.S.
Representative, 7th District of Tennessee; The Honorable Donald
A. Manzullo, U.S. Representative, 8th District of Illinois; The
Honorable Melvin Watt, U.S. Representative, 12th District of
North Carolina; The Honorable Eleanor Holmes Norton, Delegate
to Congress, The District of Columbia; The Honorable Henry A.
Politz, Chief Judge, United States Court of Appeals for the
Fifth Circuit; The Honorable Anne Williams, District Judge,
United States District Court for the Northern District of
Illinois; Steve Burbank, Professor, University of Pennsylvania
School of Law; The Honorable Frederick B. Lacey, LeBoeuf, Lamb
Greene and MacRae; The Honorable Dan Lungren, Attorney General,
State of California; The Honorable Richard Mountjoy, State
Senator, California; Bob Destro, Professor, Catholic University
School of Law; and Arthur Hellman, Professor, University of
Pittsburgh School of Law.
On May 15, 1997, the Subcommittee received testimony from
the following witnesses: The Honorable Bob Barr, U.S.
Representative, 7th District of Georgia; The Honorable Tom
DeLay, U.S. Representative, 22nd District of Texas; The
Honorable John N. Hostettler, U.S. Representative, 8th District
of Indiana; The Honorable Nita M. Lowey, U.S. Representative,
18th District of New York; Thomas Jipping, Director of the
Center for Law & Democracy, Judicial Selection Monitoring
Project, Free Congress Foundation; Charlotte Stout, Greenfield,
Tennessee; Bruce Fein, McLean, Virginia; Lino Graglia,
Professor, University of Texas School of Law; Roger Pilon,
Director for the Center for Constitutional Studies, Cato
Institute; and Wade Henderson, Executive Director, Leadership
Conference, Washington, D.C.
On June 10, 1997, the Subcommittee met in open session and
ordered favorably reported the bill H.R. 1252, amended, by a
recorded vote of 8 yeas and 7 nays, a quorum being present. On
March 24, 1998, the full Committee met in open session and
ordered favorably reported the bill H.R. 1252, as amended with
additional full Committee amendments, by recorded vote, a
quorum being present (H. Rept. 105-478). H.R. 1252 was passed
by the House on April 23, 1998. It was not taken up by the
Senate.
To amend the Webb-Kenyon Act to allow any State, territory, or
possession of the United States to bring an action in Federal
Court to enjoin violations of that Act or to enforce the laws
of such State, territory, or possession with respect to such
violations, H.R. 1063
Introduced by Representative Robert Ehrlich, Mr. Kleczka,
Mr. Holden, Mr. Ney, Mr. LaTourette, Mr. Boswell, Mr. Barcia,
Mr. Baker, Mr. Price of North Carolina, Mr. Blunt, Mr. Barrett,
Mr. Clyburn, Ms. Christian-Green, Mr. Goodlatte, Mr. Canady,
Mrs. Thurman, Mr. Pickett, Mr. Sensenbrenner, Mr. Wicker, Mr.
Diaz-Balart, Mr. Deutsch, Mrs. Clayton, Mr. Goode, Ms. Pryce of
Ohio, Mr. Neumann, Mr. Etheridge, Mr. McIntyre, Mr. Moran of
Virginia, Ms. McCarthy, Mr. Foley, Mr. Rahall, Mr. Davis of
Virginia, Mr. Bereuter, Mr. Collins, Mr. Shadegg, Mr.
Hutchinson, Mr. Clement, Mr. Boyd, Mr. Watts of Oklahoma, Mr.
Mica, Mr. Lucas of Oklahoma, Mr. Lewis of Georgia, Mr. Franks
of New Jersey, Mr. Gilchrest, Mr. Bliley, Ms. Slaughter, Ms.
DeLauro, Mr. Burton of Indiana, Mr. Hefley, Mr. Wamp, Ms. Dunn
of Washington, Mr. Hall, Mr. Duncan, Mr. Johnson, Mr. Pease,
Mr. Roemer, Mr. Kennedy of Rhode Island, Mr. Hoekstra, Mr.
Talent, Ms. Millender-McDonald, Mr. Sandlin, Mr. Kennedy of
Massachusetts, Mr. Turner, Mr. Cannon, Mr. Hansen, Mr. Bonior,
Mrs. Cubin, Mr. Cook, and Ms. Stabenow, H.R. 1063 responds to
recent problems with direct shipment of alcohol in violation of
state liquor laws by amending the Webb-Kenyon Act to allow
States to bring an action in federal court to enjoin illegal
activity or to enforce state liquor laws.
The Subcommittee held a hearing on H.R. 1063 on September
25, 1997. Testimony was received from the following witnesses:
The Honorable Frank Riggs, U.S. Representative, 1st District of
California; The Honorable Robert Ehrlich, Jr., U.S.
Representative, 2nd District of Maryland; Jim Simpson,
Chairman, Government Affairs Committee, National Licensed
Beverage Association; Jerry Douglas, Vice President, Marketing,
Biltmore Estate Wine Company, on behalf of the American
Vintners Association; James Goldberg, Esq., on behalf of the
Joint Committee of States; and Louis M. Foppiano, Vice
President, L. Foppiano Wine Co., Inc., on behalf of the Wine
Institute. No further action was taken on H.R. 1063.
Private Property Rights Implementation Act, H.R. 1534
Introduced by Representative Elton Gallegly, for himself,
Mr. Goode, Mr. Royce, Mr. Sessions, Mr. Bryant, Mr. Hill, Mr.
Pickett, Mr. Sensenbrenner, Mr. Neumann, Mr. Bonilla, Mr.
Combest, Mr. Holden, Mr. Riggs, Mr. Weller, Mr. McIntosh, Mr.
English of Pennsylvania, Mr. Barcia of Michigan, Mr. Herger,
Mr. Cunningham, Mr. McInnis, Mr. Turner, Mr. Canady of Florida,
Mr. Thornberry, Mr. Dooley of California, Mr. Frost, Mr.
Hastings of Washington, Mr. Hansen, Mr. Riley, Mr. Bob
Schaffer, Mr. Paxon, Mr. Brady, Mr. Collins, Mr. Traficant, Mr.
Bliley, Mr. Jenkins, Mr. Bishop, Mr. Boehner, Mr. Goodlatte,
Mr. Pascrell, Mr. Lewis of California, Mr. Solomon, Mr. Condit,
Mr. Dreier, Mr. Fazio of California, Mr. Hutchinson, Mr.
Shimkus, Mr. Ensign, Mr. Calvert, Mr. Doolittle, Mr. Kolbe, Mr.
Cox of California, Mr. McCollum, Mr. Cannon, Mr. Hall of Texas,
Mrs. Chenoweth, Mr. Bunning of Kentucky, Mr. Kim, Mr. Hilliard,
Mr. Hayworth, Mrs. Northup, Mr. Deal of Georgia, Mr.
Christensen, Mr. Packard, Mr. Pickering, Mr. Gekas, Mr. McHugh,
Mr. Gillmor, Mr. Hefley, Mr. Cooksey, Mr. McKeon, Mr. Salmon,
Mr. Rogan, Mr. Smith of Oregon, Mr. Underwood, Mr. Inglis of
South Carolina, Mr. Skeen, Mr. Chambliss, Mr. Wicker, Mr.
Schiff, Mr. Ehrlich, Mr. Shadegg, Mr. Gibbons, Mr. Parker, Mr.
Foley, Mr. Ballenger, Mr. Upton, Mr. Watkins, Mr. Smith of New
Jersey, Mr. Hunter, Mr. Tauzin, Mr. Hastert, Mr. Jones, Mr.
Callahan, Mr. Kingston, Mr. LoBiondo, Mr. Martinez, Mr. Cook,
Mr. Metcalf, Mr. Ortiz, Mr. Spencer, Mr. Wamp, Mr. Regula, Ms.
Granger, Mrs. Roukema, Mr. Thomas, Mr. Saxton, Mr. Knollenberg,
Mr. Dickey, Mr. Coble, Mr. Bono, Mr. Pombo, Mr. McCrery, Mr.
Rohrabacher, Mr. Sam Johnson of Texas, Mr. Burton of Indiana,
Mr. Baker, Mr. Stump, Mrs. Linda Smith of Washington, Mr.
Livingston, Mr. Barr of Georgia, Mr. Smith of Texas, Mr.
Peterson of Minnesota, Mr. Latham, Mr. Graham, Mr. Radanovich,
Mrs. Fowler, Mr. Brown of California, Mr. Weldon of
Pennsylvania, Mr. Stenholm, Mr. Chabot, Mr. Watts of Oklahoma,
Mr. Edwards, Mr. Franks of New Jersey, Mr. Crapo, Ms. Danner,
Mr. Duncan, Mr. Baesler, Mr. Gutknecht, Mr. Talent, Ms. Pryce
of Ohio, Mr. Cramer, Mr. Barrett of Nebraska, Mr. Smith of
Michigan, Mr. Young of Alaska, Mr. Miller of Florida, Mr.
Nethercutt, Mr. Pappas, Mr. Aderhold, Mrs. Myrick, Ms. Dunn of
Washington, Mr. Sandlin, Mr. Tiahrt, Mr. Berry, Mr. Camp, Mr.
Everett, Mr. Stearns, Mr. Bachus, Mr. Goodling, Mr. Souder, Mr.
Hoekstra, Mr. Ryun, Mr. White, Mr. Faleomavaega, Mr. McDade,
Mrs. Cubin, Mr. Hobson, Mr. Nussle, Mr. Dicks, Mr. Rogers, Mr.
Bilirakis, Mr. Pitts, Mr. Petri, Mr. LaHood, Mr. Hamilton, Mr.
Mica, Mr. Armey, Mr. Scarborough, Mrs. Tauscher, Mr. Buyer, Mr.
Manzullo, Mr. DeLay, Mr. Weldon of Florida, Mr. Ney, Mr. John,
Mr. Horn, Mr. Wolf, Mr. Dan Schaefer of Colorado, Mr. Lucas of
Oklahoma, Mr. Coburn, Mr. Bartlett of Maryland, Mr. Barton of
Texas, Mr. Bilbray, Mr. Young of Florida, Mr. Whitfield, Mr.
Archer, Mr. Moran of Kansas, Mr. Linder, Mr. Paul, Mr. Blunt,
Mr. Norwood, Mr. Skelton, Mr. Redmond, Mr. Thompson, Mr. Hoyer,
Mrs. Emerson, Mr. Davis of Virginia, Mr. Boyd, Mr. Gilman, Mr.
Peterson of Pennsylvania, Mr. Sisisky, Mr. Green, Mr. Sununu,
Mr. Oxley, Mr. Kasich, Mr. Istook, Mr. Lewis of Kentucky, Mr.
Leach, Mrs. Johnson of Connecticut, Mr. Porter, Mr. Largent,
Mr. Oberstar, Mr. Crane, Mr. Murtha, Mr. Houghton, Mr. Sanford,
Mr. Gordon, Mr. Snowbarger, Mr. Hilleary, Mr. Diaz-Balart, Mr.
Shaw, Mr. Blumenauer, Mr. Doyle, Mr. Taylor of North Carolina,
Mr. Taylor of Mississippi, Mr. King of New York, Mr. Rothman,
and Mr. Hulshof, H.R. 1534 provides private property owners
claiming a violation of the Fifth Amendment's taking clause
some certainty as to when they may file the claim in federal
court by addressing the procedural hurdles of the ripeness and
abstention doctrines which currently prevent them from having
fair and equal access to federal court. H.R. 1534 defines when
a final agency decision has occurred for purposes of meeting
the ripeness requirement and prohibits a federal judge from
abstaining from or relinquishing its jurisdiction when the case
does not allege any violation of a state law, right, or
privilege as a means of overcoming judicial reluctance to
review takings claims based on the abstention doctrines.
On September 25, 1997, the Subcommittee held a hearing on
H.R. 1534. The Subcommittee received testimony from the
following witnesses: John Dwyer, Esq., Acting Associate
Attorney General, United States Department of Justice, Don
Betsworth, President, North Carolina Home Builders Association,
on behalf of the National Association of Home Builders; Carl
Goldberg, Partner, Roseland Property Company, on behalf of the
New Jersey Home Builders Association; Elizabeth M. Osenbaugh,
Solicitor General, Iowa Attorney General's Office; and Daniel
R. Mandelker, Howard A. Stamper Professor of Law, Washington
University School of Law.
On September 30, 1997, the Subcommittee met in open session
and ordered favorably reported the bill H.R. 1534, amended, a
quorum being present. On October 7, 1997, the full Committee
met in open session and ordered favorably reported the bill
H.R. 1534, as amended, by a recorded vote of 18 yeas and 10
nays, a quorum being present (H. Rept. 105-323). The House
passed H.R. 1534 by recorded vote of 248 in favor and 178
opposed on October 22, 1997. H.R. 1534 was reported to the
Senate by the Senate Committee on the Judiciary on February 26,
1998. H.R. 1534 was placed on the Senate Legislative Calendar
but was not taken up for a vote.
Alternative Dispute Resolution Act, H.R. 3528
Introduced by Subcommittee Chairman Coble, H.R. 3528 is
designed to address the problem of the high caseloads burdening
the federal courts. This legislation will provide a quicker,
more efficient method by which to resolve some federal cases
when the parties or the courts so choose. H.R. 3528 directs
each federal trial court to establish some form of alternative
dispute resolution (``ADR''), which could include arbitration,
mediation, mini trials, or early neutral evaluation or some
combination of those for certain civil cases. The bill also
provides for the confidentiality of the alternative dispute
resolution process and prohibits the disclosure of such
confidential communications. It also directs the courts to
establish standards for the neutrals and arbitrators to follow,
and authorizes the Judicial Conference and the Administrative
Office of the United States Courts to assist courts with their
programs. It would provide the federal courts with the tools
necessary to present quality alternatives to expensive federal
litigation.
On October 9, 1997, the Subcommittee held a hearing on H.R.
2603, the ``Alternative Dispute Resolution and Settlement
Encouragement Act'' which contained many of the provisions
included in H.R. 3528. The Subcommittee received testimony from
the following witnesses: The Honorable Brock Hornby, Chief
Judge, United States District Court for the District of Maine;
Peter R. Steenland, Senior Counsel for Alternative Dispute
Resolution, U.S. Department of Justice; L. Allan Lind, Ph.D.,
Fuqua School of Business, Duke University; and Mitchell F.
Dolin, Esq., on behalf of the American Bar Association.
On February 26, 1998, the Subcommittee met in open session
to markup a Committee print which represented a different
version of H.R. 2603. The Committee print was ordered favorably
reported by a voice vote, a quorum being present. On March 23,
1998, the Committee print was then introduced as an original
bill, H.R. 3528. On March 24, 1998, the full Committee met in
open session and ordered favorably reported the bill H.R. 3528,
amended, by a voice vote, a quorum being present (H. Rept. 105-
487). H.R. 3528 was passed by the House under suspension of the
rules by a recorded vote of 405 yeas and 2 nays on April 21,
1998. It was subsequently amended by the Senate. Those
amendments were accepted by the House on October 7, 1998, sent
to the President and H.R. 3528 was signed into law on October
30, 1998. It is Public Law 105-315.
Federal Courts Improvement Act, H.R. 2294
Introduced by Subcommittee Chairman Coble, by request, H.R.
2294 contains several provisions that are needed to improve the
Federal Court System. It is designed to improve administration
and procedures, eliminate operational inefficiencies, and, to
the extent prudent, reduce operating expenses.
The bill affects a wide range of judicial branch programs
and operations. Provisions affecting the Judiciary Information
Technology Fund and the disposition of miscellaneous fees are
included. Provisions altering the composition of judicial
districts are included. The bill also contains provisions
regarding territorial judges and several other personnel
matters.
On October 10, 1997, the Subcommittee held a hearing on
H.R. 2294. The Subcommittee received testimony from the
following witnesses: The Honorable Brock Hornby, Chief Judge,
United States District Court for the District of Maine; The
Honorable Philip M. Pro, District Judge, United States District
Court for the District of Nevada, Chairman, Judicial Conference
Committee on Judges; The Honorable Elizabeth Kovachevich, Chief
Judge, United States District Court for the Middle District of
Florida; and The Honorable Julia Smith Gibbons, Chief Judge,
U.S. District Court for the Western District of Tennessee,
Chair, Committee on Judicial Resources.
On February 26, 1998, the Subcommittee met in open session
and ordered favorably reported the bill H.R. 2294, amended, by
voice vote, a quorum being present. On March 3, 1998, the full
Committee met in open session and ordered favorably reported
the bill H.R. 2294, as amended with additional full Committee
amendments, by voice vote, a quorum being present (H. Rept.
105-437). H.R. 2294 was passed by the House under suspension of
the rules on March 18, 1998. It was not taken up by the Senate.
To amend title 28 of the United States Code regarding enforcement of
child custody orders, H.R. 4164
Introduced by Subcommittee Chairman Coble and Mr. Andrews,
H.R. 4164 amends the Parental Kidnaping Prevention Act of 1980,
28 U.S.C. Sec. 1738A, to clarify that the Act was intended to
include grandparents as persons who may claim rights to custody
or visitation of a child and that orders granting such rights
should be enforced in any subsequent state where the children
may be moved.
On April 23, 1998, the Subcommittee held a hearing on H.R.
1690, a bill ``To amend title 28 of the United States Code
regarding enforcement of child custody orders,'' which
contained almost all of the provisions in H.R. 4164. The
Subcommittee received testimony from the following witnesses:
The Honorable Robert E. Andrews, U.S. Representative, 1st
District of New Jersey; Josephine D' Antonio, President,
Grandparents Count; and Anne M. Haralambie, Esq., Anne
Nicholson Haralambie, Attorneys, P.C., on behalf of the
American Bar Association.
On April 30, 1998, the Subcommittee met in open session to
mark up the bill H.R. 1690. The Subcommittee ordered favorably
reported the bill H.R. 1690, amended, a quorum being present.
On May 6, 1998, the full Committee met in open session and
ordered favorably reported the bill H.R. 1690, as amended, by a
voice vote, a quorum being present (H. Rept. 105-546). On June
25, 1998, Mr. Coble introduced H.R. 4164, which contained all
of the provisions of H.R. 1690 as it passed the full Committee
as well as technical amendments. On July 14, 1998, the full
Committee discharged its option to conduct a markup of H.R.
4164. H.R. 4164 passed the House under suspension of the rules
on July 14, 1998. It was subsequently amended by the Senate.
Those amendments were accepted by the House on October 21,
1998. It is Public Law 105-374.
Class Action Jurisdiction Act of 1998, H.R. 3789
Introduced by Chairman Hyde, Mr. McCollum, Mr. Smith of
Texas, Mr. Canady of Florida, Mr. Bryant, Mr. Pease, Mr. Moran
of Virginia, Mr. Frank of Massachusetts, Mr. Inglis of South
Carolina, Mr. Sensenbrenner, and Mr. Rogan, H.R. 3789 responds
to a flaw in the Judicial Code recently highlighted by the U.S.
Court of Appeals for the Third Circuit: Although ``national
(interstate) class actions are [arguably] the paradigm for
federal diversity jurisdiction because, in a constitutional
sense, they implicate interstate commerce, [invite]
discrimination by a local state, and tend to [attract] bias
against [business] enterprise[s],'' most such ``class actions
[are] beyond the reach of the federal courts . . . under the
current jurisdictional statutes.'' Frequently, these interstate
class actions are heard by state courts that are not applying
rigorous standards necessary to avoid abuses, that are ill-
equipped to address laws and claimants from outside their home
states, and that are powerless to consolidate overlapping,
``competing'' class-action proceedings filed in different
jurisdictions.
H.R. 3789 addresses these problems by expanding the
original jurisdiction of U.S. District courts over most class
actions in which minimal diversity exists among the parties.
Federal removal statutes are also amended pursuant to the bill
in furtherance of this goal.
On March 5, 1998, the Subcommittee held an oversight
hearing on the subject of mass torts and class actions. The
Subcommittee received testimony from the following witnesses:
The Honorable James P. Moran, U.S. Representative, 8th District
of Virginia; Richard L. Thornburgh, Esq., Kirkpatrick &
Lockhart, LLP; The Honorable Anthony J. Scirica, United States
Circuit Judge, U.S. Court of Appeals for the 3rd Circuit; John
P. Frank, Esq., Lewis & Roca; Professor Susan P. Koniak, Boston
University School of Law; Ralf G. Wellington, Esq., Schnader,
Harrison, Segal & Lewis, LLP; Jack W. Martin, Vice President-
General Counsel, Ford Motor Company; John L. McGoldrick, Senior
Vice President for Law and Strategic Planning and General
Counsel, Bristol-Meyers Squibb Company; Elizabeth J. Cabraser,
Attorney at Law, Lief, Cabraser, Heinmann & Bernstein, LLP; and
Dr. John B. Hendricks, President, Alabama Cryogenic
Engineering, Inc.
On June 18, 1998, the Subcommittee held a legislative
hearing on H.R. 3789. The Subcommittee received testimony from
the following witnesses: The Honorable James P. Moran, U.S.
Representative, 8th District of Virginia; Richard H. Middleton,
Esq., Middleton, Mixson, Adams & Tate, on behalf of the
American Trial Lawyers Association; John H. Beisner, Esq.,
O'Melveny & Meyers, LLP; Sheila L. Birnbaum, Esq., Skadden,
Arps, Slate, Meagher & Flom, LLP; Brian Wolfman, Esq., Public
Citizen Litigation Group; and Stanely M. Grossman, Esq.,
Pomerantz, Haudek, Block & Grossman, on behalf of the National
Association of Securities and Commercial Law Lawyers.
On June 24, 1998, the Subcommittee met in open session and
ordered favorably reported the bill H.R. 3789, amended, by
voice vote, a quorum being present. On August 5, 1998, the full
Committee met in open session and ordered favorably reported
the bill H.R. 3789 as amended with additional full Committee
amendment by a recorded vote of 17 yeas and 12 nays, a quorum
being present (H. Rept. 105-702). H.R. 3789 was placed on the
House Union calendar but not considered.
To provide that a person closely related to a judge of a court
exercising judicial power under Article III of the United
States Constitution (other than the Supreme Court) may not be
appointed as a judge of the same court, H.R. 3926 (S. 1892)
Introduced by Representative Jennifer Dunn, H.R. 3926 was
incorporated into S. 1892, the Senate companion bill. S. 1892
passed the Senate on October 6, 1998. S. 1892 passed the House
under suspension of the rules on October 7, 1998. The President
signed H.R. 1892 and it is Public Law 105-300.
Protecting American Small Business Trade Act of 1998, H.R. 3578
Introduced by Representative Robert Menendez, Mr. Pallone,
Mr. Payne, Mr. Frelinghuysen, Mr. Smith of New Jersey, Mr.
Franks of New Jersey, and Mr. Traficant, H.R. 3578 would allow
any person or corporation who has signed a contract or other
agreement containing an arbitration clause with a foreign
entity before July 1, 1985, to bring an action for relief
before the appropriate U.S. Court or federal agency to resolve
any controversy arising under the contract or agreement. In
effect, the bill would allow U.S. citizens or corporations to
disregard any arbitration clause in any contract to which they
were signatories along with a foreign entity before July 1,
1985.
On June 11, 1998, the Subcommittee held a legislative
hearing on H.R. 3578. The Subcommittee received testimony from
the following witnesses: The Honorable Robert Menendez, U.S.
Representative, 13th District of New Jersey; Salvatore J.
Monte, Owner, Kenrich Petrochemicals, Inc; and Peter A. Kalat,
Esq., Curtis, Mallet-Prevost & Mosle. No further action was
taken on H.R. 3578.
Veterans Employment Opportunities Act of 1997, H.R. 240
H.R. 240 was introduced by Representative John L. Mica, Mr.
Solomon, Mr. Stump, Mr. Everett, Mr. Frelinghuysen, Mr. Davis
of Virginia, Mr. Calvert, Mr. Filner, Mr. Ramstad, Mr. Holden,
Mr. Evans, Mr. Buyer, Mrs. Kelly, Mr. Klug, Mr. Coyne, Mr.
Rahall, Mr. Lipinski, Mr. Canady of Florida, Mr. Gallegly, Mr.
Schiff, Mr. Camp, Mr. Borski, Mr. Luther, Mr. Fazio of
California, Mr. Ensign, Mr. Manzullo, and Mr. English of
Pennsylvania.
On March 20, 1997, the Committee on Government Reform and
Oversight ordered favorably reported the bill H.R. 240, amended
(H. Rept. 105-40, part 1). The Committee on the Judiciary did
not conduct a markup of H.R. 240, but in a letter from Chairman
Hyde to Chairman Burton, it did not waive its jurisdictional
prerogative in this area. The Committee on the Judiciary was
discharged from further consideration of the bill H.R. 240. On
April 9, 1997, H.R. 240 passed the House under suspension of
the rules. The Senate companion bill, S. 1021, the ``Veterans
Employment Opportunities Act of 1997,'' passed the Senate,
amended, on October 5, 1998. S. 1021 passed the House under
suspension of the rules on October 8, 1998. S. 1021 was signed
by the President on October 31, 1998. It is Public Law 105-339.
Peremptory Challenge Act of 1997, H.R. 520 (H.R. 1252)
Introduced by Representative Charles Canady of Florida, Mr.
Sensenbrenner, Mr. Schiff, Mr. Bryant, Mr. Bono, Mr.
Rohrabacher and Mr. Riggs, H.R. 520 was incorporated into H.R.
1252, the ``Judicial Reform Act of 1997.''
To establish a Commission on Structural Alternatives for the Federal
Courts of Appeals, H.R. 908 (H.R. 2267)
Introduced by Subcommittee Chairman Coble and Mr. Berman,
H.R. 908 would establish a Commission on Structural
Alternatives for the Federal Courts of Appeals. The Commission
would: (1) study the present division of the United States into
several judicial circuits; (2) review the structure and
alignment of the Federal Courts of Appeals system, with
particular reference to the Ninth Circuit; and (3) report to
the President and Congress its recommendations for such changes
in circuit boundaries or structure as may be appropriate for
the expeditious and effective caseload of the Federal Courts of
Appeals, consistent with fundamental concepts of fairness and
due process.
On March 5, 1997, the Subcommittee met in open session and
ordered favorably reported the bill H.R. 908, a quorum being
present. On March 12, 1997, the full Committee met in open
session and ordered favorably reported the bill H.R. 908 by
voice vote, a quorum being present (H. Rept. 105-26). The House
passed H.R. 908, as amended, under suspension of the rules on
June 3, 1997, by voice vote. A compromise version of H.R. 908,
negotiated between the staffs of the House and Senate
Committees on the Judiciary, was incorporated into H.R. 2267,
the ``Departments of Commerce, Justice, and State, the
Judiciary, and Related Agencies Appropriations Act,'' as
section 305. The House passed H.R. 2267, by unanimous consent,
on November 13, 1997. The President signed H.R. 2267 into law
on November 26, 1998. It is Public Law 105-119.
To amend title 28 of the United States Code to allow an interlocutory
appeal from a court order determining whether an action may be
maintained as a class action, H.R. 660 (H.R. 1252)
Introduced by Representative Charles Canady of Florida,
H.R. 660 was incorporated into H.R. 1252, the ``Judicial Reform
Act of 1997.''
Judicial Disciplinary Proceedings Act of 1997, H.R. 702 (H.R. 1252)
Introduced by Representative Ed Bryant, Mr. Barr of
Georgia, Mr. Bono, Mr. Canady of Florida, Mr. Goodlatte, Mr.
Hostettler, Mr. McCollum, Mr. Schumer, Mr. Sensenbrenner, Mr.
Smith of Texas, Mr. Duncan, and Mr. Gekas, a version of H.R.
702 was incorporated into H.R. 1252, the ``Judicial Reform Act
of 1997.''
To adjust, and provide a procedure for the future adjustment of, the
salaries of Federal judges, H.R. 875 (H.R. 1252)
Introduced by Chairman Hyde, for himself, Mr. Conyers, Mr.
Frank of Massachusetts, Mr. Shays, Mr. Schiff, Mr. Berman, Mr.
Hastings of Florida, Mrs. Johnson of Connecticut, Mr. McDade,
Mr. Smith of Texas, Mr. Meehan, Mr. Pickett, Ms. Brown of
Florida, Mr. McCrery, Mr. Delahunt, Mr. King of New York, Mr.
Ganske, Ms. Lofgren, Mr. Diaz-Balart, Mr. Manton, Mr. Dixon,
Mr. Coyne, Mr. Filner, Mr. Snyder, Mr. Foglietta, Mr. Frost,
Mr. Lewis of Georgia, Mr. Cooksey, Mr. Rahall, Mr. Markey, Mr.
Wamp, Mr. Shuster, Mr. Chambliss, Mr. Barr of Georgia, Mr.
Koble, Mr. Weldon of Pennsylvania, Mrs. Meek of Florida, Mr.
Hilliard, Mr. Fox of Pennsylvania, Mr. Bishop, Mr. Maloney of
Connecticut. Ms. Jackson Lee of Texas, Mrs. Lowey, Mr.
Gonzales, Mr. Campbell, Mr. Neal of Massachusetts, Mr.
McCollum, Mr. Gejdenson, Mr. Blagojevich, Mr. Turner, Mr.
Cannon, Mr. English of Pennsylvania, Mr. Hefner, Mr. Davis of
Florida, Mr. Allen, Mr. Deal of Georgia, Mr. Torres, Mr.
Barrett of Wisconsin, Mr. Hoyer, Mr. McNulty, Mr. Watt of North
Carolina, Mr. Spence, Mr. Gekas, Mrs. McCarthy of New York, Mr.
Abercrombie, Mr. Bliley, Ms. Sanchez, Mr. Ackerman, Mrs.
Kennelly of Connecticut, Ms. Waters, Mr. Davis of Illinois, Mr.
Wicker, Mr. Sandlin, Mr. Shimkus, Mr. Hinchey, Mr. Rodriguez,
Mr. Graham, Mr. Nethercutt, Ms. Furse, Mr. Lampson, Mr. Wexler,
Mr. Kind of Wisconsin, Mr. Kucinich, Mr. Dooley of California,
Mr. Price of North Carolina, Mr. LaHood, Ms. DeLauro, Mr.
Greenwood, Ms. Carson, and Mr. Bilirakis, portions of H.R. 875
were incorporated into H.R. 1252, the Judicial Reform Act of
1997.''
To amend chapter 3 of title 28 of the United States Code to provide for
the appointment in each United States Circuit Court of Appeals,
of at least one resident of each state in such circuit, H.R.
932 (H.R. 2267)
Introduced by Representative Neil Abercrombie and Mrs. Mink
of Hawaii, H.R. 932 was incorporated into H.R. 2267 as section
307. The House passed H.R. 2267, the ``Departments of Commerce,
Justice, and State, the Judiciary, and Related Agencies
Appropriations Act,'' by unanimous consent on November 13,
1997. The President signed H.R. 2267 into law on November 26,
1998. It is Public Law 105-119.
To provide for the conversion of existing temporary United States
district judgeships to permanent status, H.R. 977 (S. 996)
Introduced by Chairman Hyde, for himself, Mr. Conyers, Mr.
LaHood, Mr. Dooley of California, Mr. Matsui, Mr. Barrett of
Nebraska, Mr. Fazio of California, Mr. Abercrombie, Mr.
Radanovich, Mr. Traficant, Mr. Shimkus, Mr. Regula, Mr. Pombo,
Mr. Pickett, Mr. Bateman, Mr. Stokes, Mr. Kucinich, Mr. Lewis
of California, Mr. Oxley, Mr. Christensen, Mr. Evans, Mrs. Mink
of Hawaii, Mr. Moran of Virginia, Mr. Davis of Virginia, Ms.
Kaptur, Mr. Sawyer, Mr. Hilliard, Mr. Sisisky, Mr. Scott, Mr.
Bereuter, Mr. Bliley, Mr. Goode, Mr. Wolf, Mr. Poshard, Mrs.
Emerson, Mr. Hinchey, Mr. McNulty, Mr. McHugh, Mr. Boehlert,
Mr. Costello, and Mr. Solomon, H.R. 977 was incorporated into
S. 996, a bill ``To provide for the authorization of
appropriations in each fiscal year for arbitration in the
United States district courts.'' S. 996 passed the Senate on
July 31, 1997. An amended S. 996 passed the House under
suspension of the rules by a recorded vote of 421 yeas and 0
nays on September 23, 1997. On September 30, 1997, the Senate
agreed to the House amendments and sent the bill S. 996 to the
President. The President signed S. 996 on October 6, 1997. It
is Public Law 105-53.
State Initiative Fairness Act, H.R. 1170 (H.R. 1252)
Introduced by Representative Sonny Bono, for himself, Mr.
Hyde, Mr. Coble, Mr. Smith of Texas, Mr. Gekas, Mr. McCollum,
Mr. Canady of Florida, Mr. Sensenbrenner, Mr. Gallegly, Mr.
Goodlatte, Mr. Barr of Georgia, Mr. Bryant, Mr. Schiff, Mr.
Chabot, Mr. Solomon, Mr. Dreier, Mr. Calvert, Mr. Rohrabacher,
Mr. Horn, Mr. Bilbray, Mr. Riggs, Mr. McKeon, Mr. Royce, Mr.
Herger, Mr. Hunter, Mr. Lewis of California, Mr. Kim, Mr.
Ehrlich, Mr. Coburn, Mr. Cunningham, Mr. Graham, Mr.
Hostettler, Mr. Bartlett of Maryland, Mr. McIntosh, Mr.
Packard, Mr. Rogan, Mr. Inglis of South Carolina, Mr. Foley,
Mr. Largent, Mr. Hutchinson, Mr. Gibbons, and Mr. Salmon, H.R.
1170 was incorporated into H.R. 1252, the ``Judicial Reform Act
of 1997.''
Sunshine in the Courtroom Act, H.R. 1280 (H.R. 1252)
Introduced by Representative Steve Chabot, for himself, Mr.
Schumer, Mr. Coble, Mr. DeLay, Mr. Frank of Massachusetts, Mr.
Gekas, Mr. Dellums, Mr. Schiff, Mr. Rothman, Mr. Portman, Mr.
Delahunt, Mr. Lewis of Kentucky, Mrs. McCarthy of New York, Mr.
Dixon, Mr. Boehner, Mr. Inglis of South Carolina, Mr. English
of Pennsylvania, Mr. Hulshof, Mr. Wexler, Mr. Jones, Mr. Paxon,
Mr. Hilleary, Mr. Quinn, and Mr. Scarborough, a version of H.R.
1280 was incorporated into H.R. 1252, the ``Judicial Reform Act
of 1997.'' The amended version permits proceedings in federal
courts to be televised under certain conditions.
To reauthorize the program established under chapter 44 of title 28 of
the United States Code relating to arbitration, H.R. 1581 (S.
996)
Introduced by Subcommittee Chairman Coble, H.R. 1581
reauthorizes twenty arbitration programs currently operating in
Federal district courts throughout the country. The arbitration
programs were first authorized over 20 years ago and have been
continuously reauthorized since. The success of these programs
is unquestioned.
Following are those Federal District Courts authorized to
use arbitration pursuant to Chapter 44, Section 28 U.S.C.
658(1): the Northern District of California, the Middle
District of Florida, the Western District of Michigan, the
Western District of Missouri, the District of New Jersey, the
Eastern District of New York, the Middle District of North
Carolina, the Western District of Oklahoma, the Eastern
District of Pennsylvania, and the Western District of Texas.
The following are those Federal District Courts approved for
the use of arbitration voluntarily by the Judicial Conference
pursuant to Chapter 44, Section 28 U.S.C 658(2): the District
of Arizona, the Middle District of Georgia, the District of
Nevada, the Northern District of New York, the Western District
of New York, the Western District of Pennsylvania, the Northern
District of Ohio, the District of Utah, the Western District of
Washington, and the Middle District of Tennessee.
On June 10, 1997, the Subcommittee met in open session and
ordered favorably reported the bill H.R. 1518, by voice vote, a
quorum being present. On June 18, 1997, the full Committee met
in open session and ordered favorably reported the bill H.R.
1518, by voice vote, a quorum being present (H. Rept. 105-143).
On June 23, 1997, the House passed the bill H.R. 1518 by voice
vote, under suspension of the rules. The provisions of H.R.
1518 were included in S. 996, a bill ``To provide for the
authorization of appropriations in each fiscal year for
arbitration in the United States district courts.'' S. 996
passed the Senate on July 31, 1997. An amended S. 996 passed
the House under suspension of the rules by a recorded vote of
421 yeas and 0 nays on September 23, 1997. On September 30,
1997, the Senate agreed to the House amendments and sent the
bill S. 996 to the President. The President signed S. 996 on
October 6, 1997. It is Public Law 105-53.
To amend title 28 of the United States Code to create two divisions in
the Eastern Judicial District of Louisiana, H.R. 1790
Introduced by Representative W.J. ``Billy'' Tauzin, the
provisions in H.R. 1790 were incorporated into H.R. 2294, the
``Federal Courts Improvement Act of 1997.''
Multiparty, Multiforum Jurisdiction Act of 1997, H.R. 1857 (H.R. 1252)
Introduced by Representative Jim Sensenbrenner, H.R. 1857
was incorporated into H.R. 1252, the ``Judicial Reform Act of
1997.''
To amend title 28 of the United States Code to transfer Schuylkill
County, Pennsylvania, from the Eastern Judicial District of
Pennsylvania to the Middle Judicial District of Pennsylvania,
H.R. 2123 (H.R. 2294)
Introduced by Representative Tim Holden, H.R. 2123 was
incorporated into H.R. 2294, the ``Federal Courts Improvement
Act of 1997.''
Judicial Conduct Reform Act of 1997, H.R. 2739 (H.R. 4328)
Introduced by Representative Joseph M. McDade and Mr.
DeLay, H.R. 2739 was incorporated into H.R. 4328, the Omnibus
Appropriations bill, as section 801, Ethical Standards for
Federal Prosecutors. It subjects government attorneys to State
laws and rules, and local Federal court rules, governing
attorneys in each State where a government attorney engages in
that attorney's duties, to the same extent and in the same
manner as other attorneys in that State. This will repeal
77.2(a) of part 77 of title 28 of the Code of Federal
Regulations. Section 801 takes effect 180 days after the date
of the enactment of H.R. 4328. H.R. 4328 is Public Law 105-277.
Florida Federal Judgeship Act of 1998, H.R. 3154 (H.R. 2294)
Introduced by Representative Charles Canady of Florida, Mr.
McCollum, Mr. Goss, Mr. Young of Florida, Mr. Davis of Florida,
and Mr. Wexler, H.R. 3154 was incorporated into H.R. 2294, the
``Federal Courts Improvement Act of 1997.''
Alternative Dispute Resolution and Settlement Encouragement Act, H.R.
903 (H.R. 3528)
Introduced by Subcommittee Chairman Coble and Mr.
Goodlatte, the provisions of H.R. 903 were incorporated into
H.R. 3528, the ``Alternative Dispute Resolution Act of 1998.''
Intellectual Property
Copyrights
WIPO Treaties Implementation Act, H.R. 2281
Introduced by Subcommittee Chairman Coble, Mr. Hyde, Mr.
Conyers, Mr. Frank of Massachusetts, Mr. Bono, Mr. McCollum,
Mr. Berman, Mrs. Bono, Mr. Paxon, and Mr. Pickering, H.R. 2281
contains five titles which address several copyright issues.
Title I implements two treaties which ensure adequate
protection for American works in countries around the world at
a time when the Internet allows users to send and retrieve
perfect copies of copyrighted material over the Internet. In
compliance with the treaties, H.R. 2281 makes it unlawful to
defeat technological measures used by copyright owners to
protect their works on the Internet, including preventing
unlawful access and targeting devices made to circumvent
encrypted copyrighted material. It also makes it unlawful to
deliberately alter or delete information provided by a
copyright owner which identifies a work, its owner, and its
permissible use.
Title II, the ``On-Line Copyright Infringement Liability
Limitation Act'' was introduced to address concerns raised by a
number of on-line service and Internet access providers
regarding their potential liability for copyright infringement
when infringing material is transmitted on-line through their
services. Title II of this bill codifies a liability system
based on the core of current case law dealing with the
liability of on-line service providers.
Title III ensures that independent computer maintenance
servicers do not inadvertently become liable for copyright
infringement merely because they have turned on a machine in
order to service its hardware components. When a computer is
turned on, certain software or parts thereof (generally the
machine's operating system software) is automatically copied
into the machine's random access memory, or ``RAM.'' During the
course of activating the computer, different parts of the
operating system may reside in the RAM at different times
because the operating system is sometimes larger than the
capacity of the RAM. Because such copying has been held to
constitute a ``reproduction'' under Sec. 106 of the Copyright
Act, a person who activated the machine without the
authorization of the copyright owner of that software could be
liable for copyright infringement. This title has the narrow
and specific intent of relieving independent service providers,
persons unaffiliated with either the owner or lessee of the
machine, from liability under the Copyright Act when, solely by
virtue of activating the machine in which a computer program
resides, they inadvertently cause an unauthorized copy of that
program to be made.
Title IV contains several miscellaneous provisions:
It directs the Register of Copyrights to consult with
representatives of copyright owners, nonprofit educational
institutions, and nonprofit libraries and archives and to
submit recommendations to the Congress no later than 6 months
after the date of enactment of the bill on how to promote
distance education through digital technologies, including
interactive digital networks, while maintaining an appropriate
balance between the rights of copyright owners and the needs of
users.
It updates section 108 to allow libraries and archives to
take advantage of digital technologies when engaging in
specified preservation activities. Section 108 of the Copyright
Act permits these entities of the type described in that
section to make and, in some cases, distribute a limited number
of copies of certain types of copyrighted works, without the
permission of the copyright holder, for specified purposes
relating to these entities' functions as repositories of such
works for public reference.
It contains amendments to sections 112 and 114 of the
Copyright Act that are intended to achieve two purposes: first,
to further a stated objective of Congress when it passed the
Digital Performance Right in Sound Recordings Act of 1995 to
ensure that recording artists and record companies will be
protected as new technologies affect the ways in which their
creative works are used; and second, to create fair and
efficient licensing mechanisms that address the complex issues
facing copyright owners and copyright users as a result of the
rapid growth of digital audio services. This amendment
accomplishes both of these objectives by creating two statutory
licenses for certain performances and reproductions of sound
recordings in the digital environment.
The purpose of title V, the ``Vessel Hull Design Protection
Act,'' is to offer limited protection for original designs of
vessel hulls which are usually misappropriated by persons who
indulge in a marine industry practice known as ``hull
splashing.''
On September 16 and 17, 1997, the Subcommittee held
hearings on H.R. 2281. On September 16, the Subcommittee
received testimony from the following witnesses: The Honorable
Bruce Lehman, Assistant Secretary of Commerce and Commissioner
of Patents and Trademarks, Patent and Trademark Office, United
States Department of Commerce; The Honorable Marybeth Peters,
Register of Copyrights, Copyright Office of the United States,
Library of Congress; Roy Neel, President and Chief Executive
Officer, United States Telephone Association; Jack Valenti,
President and Chief Executive Officer, Motion Picture
Association of America; Robert Holleyman, President, Business
Software Alliance; M.R.C. Greenwood, Chancellor, University of
California, Santa Cruz, on behalf of the Association of
American Universities and the National Association of State
Universities and Land Grant Colleges; Tushar Patel, Vice
President and Managing Director, USWeb; Lawrence Kenswil,
Executive Vice President, Business and Legal Affairs, Universal
Music Group; Marc Jacobson, General Counsel, Prodigy Services,
Inc.; Ken Wasch, President, Software Publishers Association;
Ronald G. Dunn, President, Information Industry Association;
John Bettis, Songwriter, on behalf of the American Society of
Composers Authors and Publishers; Allee Willis, Songwriter, on
behalf of Broadcast Music, Inc.; and Robert L. Oakley,
Professor of Law, Georgetown University Law Center and
Director, Georgetown Law Library, on behalf of a Coalition of
Library and Educational Organizations.
On September 17, the Subcommittee received testimony from
the following witnesses: Johnny Cash, Vocal Artist, with
Hillary Rosen, President and Chief Executive Officer, Recording
Industry Association of America; Allan Adler, Vice President,
Legal and Governmental Affairs, Association of American
Publishers; Gail Markels, General Counsel and Senior Vice
President, Interactive Digital Software Association; Mike Kirk,
Executive Director, American Intellectual Property Law
Association; Thomas Ryan, President, SciTech Software, Inc.;
Mark Belinsky, Vice President, Copy Protection Group,
Macrovision, Inc.; Douglas Bennett, President, Earlham College,
Vice President, American Council of Learned Societies, on
behalf of the Digital Future Coalition; Edward J. Black,
President, Computer and Communications Industry Association;
Christopher Byrne, Director of Intellectual Property, Silicon
Graphics, Inc., on behalf of the Information Technology
Industry Council; and Gary Shapiro, President, Consumer
Electronics Manufacturer's Association (a sector of the
Electronic Industries Association), and Chairman, Home
Recording Rights Coalition.
On February 26, 1998, the Subcommittee met in open session
and ordered favorably reported the bill H.R. 2281, amended, by
voice vote, a quorum being present. On April 1, 1998, the full
Committee met in open session and ordered favorably reported
the bill H.R. 2281, as amended with additional full Committee
amendments, by voice vote, a quorum being present. The
Committee on Commerce requested and received a sequential
referral on H.R. 2281. The Committee on Commerce reported on
H.R. 2281 on July 22, 1998 (H. Rept. 105-551, part 2). The
House passed under suspension of the rules H.R. 2281 on August
4, 1998. It was subsequently amended by the Senate. The Senate
insisted on its amendments and requested a conference on H.R.
2281. On October 8, 1998, Subcommittee Chairman Coble filed the
Conference Report (H. Rept. 105-796). The Conference Report on
H.R. 2281 was passed by the Senate on October 8, 1998, and the
House passed it under suspension of the rules, by voice vote,
on October 12, 1998. The President signed H.R. 2281 on October
28, 1998. It is Public Law 105-304.
Computer Maintenance Competition Assurance Act of 1997, H.R. 72 (H.R.
2281)
Introduced by Representative Knollenberg, H.R. 72 was
incorporated into H.R. 2281, the ``Digital Millenium Copyright
Act.''
Online Copyright Liability Limitation Act, H.R. 2180 (H.R. 2281)
Introduced by Subcommittee Chairman Coble and Chairman
Hyde, the provisions contained in H.R. 2180 were incorporated
into H.R. 3209, the ``On-line Copyright Infringement Liability
Limitation Act,'' and ultimately in H.R. 2281, the ``Digital
Millenium Copyright Act.''
On February 16 and 17, 1997, the Subcommittee held hearings
on the bills H.R. 2180 and H.R. 2281. The Subcommittee received
testimony regarding H.R. 2180 from the same witnesses that
testified regarding H.R. 2281.
On February 26, 1998, the Subcommittee met in open session
and ordered favorably reported the bill H.R. 3209, by voice
vote, a quorum being present. On April 1, 1998, the full
Committee met in open session and amended H.R. 2281, the
``Digital Millenium Copyright Act'' by adding H.R. 3209 to it.
H.R. 2281 was signed by the President on October 28, 1998, and
is Public Law 105-304.
No Electronic Theft Act, H.R. 2265
Introduced by Representative Bob Goodlatte, Mr. Coble, Mr.
Frank of Massachusetts, Mr. Cannon, Mr. Delahunt, Mr. Gallegly,
and Mr. Clement, H.R. 2265 reverses the practical consequences
of United States v. LaMacchia, 871 F. Supp. 535 (D. Mass.
1994), which held, inter alia, that electronic piracy of
copyrighted works may not be prosecuted under the federal wire
fraud statute; and that criminal sanctions available under
titles 17 and 18 of the U.S. Code for copyright infringement do
not apply in instances in which a defendant does not realize a
``commercial advantage or private financial gain.''
On September 11, 1997, the Subcommittee held a hearing on
H.R. 2265. The Subcommittee received testimony from the
following witnesses: The Honorable Marybeth Peters, Register of
Copyrights, Copyright Office of the United States, The Library
of Congress; Kevin Di Gregory, Deputy Assistant Attorney
General (Criminal Division), Department of Justice; Greg Wrenn,
Corporate Counsel, Adobe Software; Brad Smith, Associate
General Counsel, Microsoft Corporation; Sandra A. Sellers, Vice
President (Enforcement and Education), Software Publishers
Association; Cary Sherman, Senior Executive Vice President and
General Counsel, Recording Industry Association of America;
Fritz Attaway, Senior Vice President, Motion Picture
Association of America; and David Nimmer, Private Attorney on
behalf of the United States Telephone Association.
On September 30, 1997, the Subcommittee met in open session
and ordered favorably reported the bill H.R. 2265, amended, by
voice vote, a quorum being present. On October 7, 1997, the
full Committee met in open session and ordered favorably
reported the bill H.R. 2265, as amended with additional full
Committee amendments, by voice vote, a quorum being present (H.
Rept. 105-339). On November 4, 1997, the House passed under
suspension of the rules H.R. 2265 as amended. On November 13,
1997, the Senate passed H.R. 2265. On December 16, 1997, the
President signed into law H.R. 2265. It is Public Law 105-147.
Copyright Term Extension Act, H.R. 2589 (S. 505)
Introduced by Subcommittee Chairman Coble, Mr. Frank of
Massachusetts, Mr. Conyers, Mr. Gallegly, Mr. Goodlatte, Mr.
Bono, Mr. Cannon, Mr. McCollum, Mr. Canady of Florida, Mr.
Berman, Mr. Boucher, Ms. Lofgren, and Mr. Delahunt, H.R. 2589
will extend the term of copyright protection in all copyrighted
works that have not fallen into the public domain by 20 years.
On June 27, 1997, the Subcommittee held an oversight
hearing on the issue of copyright term extension. The
Subcommittee received testimony regarding copyright term
extension from the following witnesses: Fritz Attaway, General
Counsel, Motion Picture Association of America; George David
Weiss, Songwriter, Songwriters Guild of America; Frances
Preston, President, Broadcast Music Incorporated; Julius
Epstein, Author of ``Casablanca,'' Writers Guild of America,
West; and Professor Jerome Reichman, Vanderbilt Law School.
On September 30, 1997, the Subcommittee met in open session
to mark up a Committee print which contained many provisions
contained in H.R. 604, the ``Copyright Term Extension Act of
1997.'' The Committee print was ordered favorably reported by
voice vote, a quorum being present. On October 2, 1997, the
Committee print was then introduced by Subcommittee Chairman
Coble as a clean bill, H.R. 2589. On March 3, 1998, the full
Committee met in open session and ordered favorably reported
the bill H.R. 2589, by voice vote, a quorum being present (H.
Rept. 105-452). The House passed H.R. 2589, amended by
amendment regarding music licensing offered by Mr.
Sensenbrenner, by voice vote on March 25, 1998. The Senate
companion bill, S. 505, was amended to contain the copyright
term extension provisions in H.R. 2589 and a negotiated
agreement on music licensing. The Senate passed S. 505 on
October 7, 1998. The House passed under suspension of the rules
S. 505 on October 7, 1998. The President signed S. 505 into law
on October 27, 1998. It is Public Law 105-298.
Fairness in Music Licensing Act, H.R. 789 (S. 505)
Introduced by Representative James Sensenbrenner, for
himself, Mr. Burr of North Carolina, Mr. Cunningham, Mr.
Gillmor, Mr. Norwood, Mr. McHugh, Mr. Andrews, Mr. Ensign, Mr.
Mascara, Mr. Herger, Mr. Lewis of California, Mr. Burton of
Indiana, Mr. Petri, Mr. Smith of New Jersey, Mr. Parker, Mr.
McDermott (withdrew on March 18, 1997), Mr. Thornberry, Mr.
Christensen, Mr. Inglis of South Carolina, Mr. Davis of
Virginia, Mr. LaTourette, Mr. Ehlers, Mr. Ehrlich, Mr.
Hoekstra, Ms. Jackson Lee of Texas, Mr. Peterson of Minnesota,
Mr. LoBiondo, Mrs. Linda Smith of Washington, Mr. Holden, Mr.
Schiff, Mr. Stump, Mr. Wynn, Mr. Calvert, Mr. Barton of Texas,
Mr. Lewis of Kentucky, Mr. Baesler, Mr. Saxton, Mr. Wolf, Mr.
Doyle, Mr. Spratt, Mr. Skeen, Mrs. Cubin, Mr. Knollenberg, Mr.
Porter, Mr. Bachus, Mr. Hastert, Mr. Collins, Mr. Pickett, Mr.
Duncan, Mr. Upton, Mr. Weller, Mr. Poshard, Mr. Crane, Mr.
Metcalf, Ms. Pryce of Ohio, Mr. Salmon, Mrs. Emerson, Mr. Young
of Alaska, Mr. McHale, Mr. Horn, Mr. Klug, Mr. Latham, Mr.
Talent, Mr. Franks of New Jersey, Mr. Barcia of Michigan, Mr.
Chambliss, Mr. Bartlett of Maryland, Mr. McInnis, Mr. Oberstar,
Mr. Tiahrt, Mr. Packard, Mr. Bonilla, Mr. Skelton, Mr. Kolbe,
Mr. Manzullo, Mr. Stearns, Mr. Gekas, Mr. Lipinski, Mr.
Combest, Mr. Quinn, Mr. Walsh, Mr. Sam Johnson of Texas, Mr.
Gilchrest, Mr. Dickey, Mr. Stenholm, Mr. Sessions, Mr. Hobson,
Mr. Kleczka, Mr. Watts of Oklahoma, Mr. Nethercutt, Mr.
McIntosh, Mr. Barrett of Nebraska, Ms. Dunn of Washington, Mr.
Hayworth, Mr. Nussle, Mr. Pickering, Mr. Clyburn, Mr.
Snowbarger, Mr. Moran of Kansas, Mr. Souder, Mr. Visclosky, Mr.
Rush, Mr. Sununu, Mr. Ney, Mr. Neumann, Mr. Ballenger, Mr.
Weldon of Pennsylvania, Mr. Pappas, Mr. Ewing, Mr. Shadegg, Mr.
Chabot, Mr. Berry, Mrs. Roukema, Mr. Camp, Mr. Condit, Mr.
Ramstad, Mr. Kind of Wisconsin, Mr. Spence, Mr. Taylor of North
Carolina, Mr. Bereuter, Mr. Hilliard, Mr. Hill, Mr. Gallegly,
Mrs. Northup, Mr. Crapo, Mr. Gutknecht, Mr. Frelinghuysen, Ms.
Carson, Mr. Peterson of Pennsylvania, Mr. Shimkus, Mr. Pallone,
Mr. White, Mr. Dan Schaefer of Colorado, Mr. Thune, Mr.
Whitfield, Mr. Turner, Mr. Redmond, Mr. Graham, Ms. Danner, Mr.
Istook, Mr. Deal of Georgia, Mr. Rahall, Mr. Boyd, Mr. Bunning
of Kentucky, Mr. Pastor, Mr. Roemer, Mr. Hefley, Mr.
Blagojevich, Mr. McNulty, Mr. Minge, Mr. Bob Schaffer, Mr.
Pomeroy, Mr. Rohrabacher, Mr. Kasich, Mr. Lucas of Oklahoma,
Mr. Hinojosa, Mr. Sanford, Mr. Paxon, and Mr. Hastings of
Washington, H.R. 789 contained certain provisions which were
incorporated into S. 505, the ``Sonny Bono Copyright Term
Extension Act.''
On June 27, 1997, the Subcommittee held an oversight
hearing on the issue of per program licenses, which are dealt
with in H.R. 789. The Subcommittee received testimony from the
following witnesses: Bob Sterling, President, Coalition to Save
America's Gospel Music Heritage; Ed Atsinger, President, Salem
Communications Corporation; and Dirk Hallemeier, Radio Station
Owner, St. Louis Mid-American Gospel.
On July 17, the Subcommittee held an oversight hearing on
the issue of music licensing in restaurants and retail and
other establishments. The Subcommittee received testimony from
the following witnesses: The Honorably Marybeth Peters,
Register of Copyrights, Copyright Office of the United States,
The Library of Congress; Robert Stoll, Administrator, Office of
Legislative Affairs, United States Department of Commerce,
Patent and Trademark Office; Wayland Holyfield, President,
Nashville Songwriters' Association International, on behalf of
the American Society of Composers Authors and Publishers; Mac
Davis, Songwriter, on behalf of Broadcast Music Incorporated;
Pat Collins, Senior Vice-President, Licensing, SESAC, Inc.;
Debra Leach, Executive Director, National Licensed Beverage
Association; Peter Kilgore, General Counsel, National
Restaurant Association; Pete Madland, President, Wisconsin
Tavern League, Owner of ``Pete's Landing''; Thelma Showman,
Owner, Thelma Showman's School of Dance''; and Gary Shapiro,
President, Consumer Electronics Manufacturers Association.
The provisions contained in H.R. 789 regarding music
licensing in restaurants and retail and other establishments
were negotiated and the resulting agreement was incorporated
into S. 505.
To make technical amendments to certain provisions of title 17 of the
United States Code, H.R. 672
Introduced by Subcommittee Chairman Coble, H.R. 672
accomplishes many purposes. Some of its provisions will assist
the U.S. Copyright Office in carrying out its duties, including
giving the Office the ability to set reasonable fees for basic
services, subject to congressional approval. Others correct or
clarify the language in several recent amendments to the law so
that Congress' original intent can be better achieved. None of
the amendments contained in H.R. 672 change substantive
copyright law. All of the amendments are non-controversial and
technical or clarifying in nature.
The Subcommittee held no hearings on H.R. 672 because it
viewed the bill as technical and noncontroversial, and it
received broad bipartisan support.
On March 5, 1997, the Subcommittee met in open session and
ordered favorably reported the bill H.R. 672, amended, by voice
vote, a quorum being present. On March 12, 1997, the full
Committee met in open session and ordered favorably reported
the bill H.R. 672, as amended, a quorum being present (H. Rept.
105-25). H.R. 672 was passed by the House under suspension of
the rules on March 18, 1997, by a recorded vote of 424 yeas and
2 nays. It was subsequently amended by the Senate. Those
amendments were accepted by the House on November 4, 1997, sent
to the President and H.R. 672 was signed into law on November
13, 1997. It is Public Law 105-80.
To amend title 17 of the United States Code to provide that the
distribution before January 1, 1978, of a phonorecord shall not
for any purpose constitute a publication of the musical work
embodied therein, H.R. 1967 (H.R. 672)
Introduced by Subcommittee Chairman Coble, for himself, Mr.
Hilleary, Mr. Frank of Massachusetts, and Mr. Bryant, H.R. 1967
resolves problems created by recent judicial interpretations of
provisions of the 1909 Copyright Act. It makes clear that the
distribution of a musical record, disc or tape before 1978 did
not constitute a publication of the musical composition(s)
embodied in that disc or tape.
On June 27, 1997, the Subcommittee held an oversight
hearing on the issues contained in H.R. 1967. The Subcommittee
received testimony from the following witnesses: Paul Williams,
Songwriter, on behalf of the American Society of Composers,
Authors and Publishers; and Ed Murphy, President, National
Music Publishers Association.
On September 30, 1997, the Subcommittee met in open session
and ordered favorably reported the bill H.R. 1967, by voice
vote, a quorum being present. On October 7, 1997, the full
Committee met in open session and ordered favorably reported
the bill H.R. 1967, by voice vote, a quorum being present (H.
Rept. 105-325). On October 30, 1997, the Senate amended H.R.
672 to include the provisions contained in H.R. 1967. H.R. 672
is now Public Law 105-80.
Multichannel Video Competition and Consumer Protection Act, H.R. 2921
Introduced by Representative W.J. ``Billy'' Tauzin, for
himself, Mr. Markey, Mr. Boucher, Mr. Whitfield, Mr. Shimkus,
Mr. Norwood, Mr. Hall of Texas, Mr. Greenwood, Mr. Stearns, Mr.
Hill, Mr. McHugh, Mr. Packard, Mr. Bonilla, Mr. Hinchey, Mr.
John, Mr. Miller of Florida, Mr. Burr of North Carolina, Mr.
Deal of Georgia, Mr. Sessions, Mr. LaFalce, Mr. Rahall, Mr.
Walsh, Mr. Skelton, Mr. Callahan, Mr. Barcia of Michigan, Mrs.
Cubin, Mr. Burton of Indiana, Mr. Stenholm, Mr. Smith of
Oregon, Mr. McInnis, Mr. Hamilton, Mrs. Thurman, Mr. Spratt,
Mr. Bishop, Mr. Boehner, Mr. Boswell, Mr. DeFazio, Mr. Petri,
Mr. Nussle, Mr. Ballenger, Mr. Latham, Mr. Jones, Mr.
Thornberry, Ms. Danner, Mr. Crapo, Mr. Largent, Mr. Clyburn,
Mr. LaTourette, Mr. Bereuter, Mr. Dickey, Mr. Camp, Mr. Coburn,
Mr. Frank of Massachusetts, Mr. Dan Schaefer of Colorado, Mr.
Poshard, Mr. Klink, Mr. Gillmor, Mr. Berry, Mrs. Emerson, Mr.
Barrett of Nebraska, Mr. Tanner, Mrs. Kelly, Mr. Solomon, Mr.
Peterson of Minnesota, Mr. Stump, Mr. Nethercutt, Mr. Boyd, Mr.
Goss, Mr. Taylor of North Carolina, Mr. Skeen, Mr. Rogan, Mr.
Maloney of Connecticut, Mr. Upton, Mr. Young of Alaska, Mr.
Combest, Mr. Oxley, Mr. Christensen, Mr. Wise, Mr. Hutchinson,
Mrs. Morella, Mr. Horn, Mr. Parker, Mrs. Myrick, Ms. Eshoo,
Mrs. Chenoweth, Mr. Kind of Wisconsin, Mr. Clement, Mr. Cook,
Mr. Knollenberg, Mr. Moran of Kansas, Mr. Gejdenson, Mr.
Traficant, Mr. Peterson of Pennsylvania, Mr. Lewis of Kentucky,
Mr. Wolf, Mr. Hastert, Mr. Gutknecht, Mr. Bilbray, Mr.
Pickering, Mr. Hilleary, Mr. Lucas of Oklahoma, Ms. Stabenow,
Mr. Minge, Mr. McGovern, Mr. Stupak, Mr. Shays, Mr. Murtha, Mr.
Kennedy of Massachusetts, Mr. Goodling, Mrs. Linda Smith of
Washington, Mr. Cannon, Mr. Boehlert, Mr. Gilchrest, Mr. Weldon
of Pennsylvania, Mr. Hefner, Mr. Davis of Florida, Mr. Collins,
Mr. Lantos, Mr. Etheridge, Mrs. Fowler, Mr. Turner, Mr.
Sandlin, Mr. Quinn, Mr. Ney, Mr. Hastings of Washington, Mr.
Bateman, Ms. Eddie Bernice Johnson of Texas, Ms. Rivers, Mr.
Aderholt, Mr. Kildee, Mr. Smith of Texas, Mr. Reyes, Mr.
Ensign, Mr. Olver, Mr. Ewing, Mr. Pickett, Mr. Hayworth, Mr.
Strickland, Mr. Sam Johnson of Texas, Mr. Neal of
Massachusetts, Mr. Miller of California, Mr. Gilman, Mr.
Thompson, Mr. Hulshof, Mr. Ganske, Mr. Klug, Mr. McIntyre, Mr.
Blunt, Mr. Engel, Mr. Chambliss, Mr. Sanders, Ms. Kaptur, Mr.
Lampson, Mr. Farr of California, Mr. Pomeroy, Ms. Slaughter,
Mr. Deutsch, and Mr. Evans, H.R. 2921 is intended provide
relief to consumers regarding an increase in the copyright fees
satellite carriers must pay in order to obtain programming. The
moratorium will provide Congress the necessary time to evaluate
what effect an increase in satellite fees would have on
satellite carriers' ability to compete with cable television.
This parity will lead to increased exposure of copyrighted
programming to consumers, resulting in lower prices for cable
and satellite services because such services will have to
compete with each other to deliver desired programming directly
to American homes.
On August 4, 1998, the full Committee met in open session
and ordered favorably reported the bill H.R. 2921, as amended,
by voice vote, a quorum being present (H. Rept. 105-661, part
2). A scaled down version of H.R. 2921 was passed by the House
under suspension of the rules on October 7, 1998. It was not
taken up by the Senate.
Copyright Compulsory License Improvement Act, H.R. 3210
Introduced by Subcommittee Chairman Coble, H.R. 3210 is
intended to improve the current copyright compulsory license
applied to satellite carriers of copyrighted programming
contained on television broadcast signals, and to provide for a
new copyright compulsory license that will allow satellite
carriers to retransmit a local broadcast signal into the same
local market from which it originated for no copyright fee.
This will essentially provide to satellite carriers the same
opportunities as their cable competitors while also applying
many of the same obligations. This parity will lead to
increased exposure of copyrighted programming to consumers,
resulting in lower prices for cable and satellite services
because such services will have to compete with each other to
deliver desired programming directly to American homes.
The Subcommittee held two oversight hearings on H.R. 3210.
On October 30, 1997, the Subcommittee held an oversight hearing
on copyright licensing regimes covering retransmission of
broadcast signals. The Subcommittee received testimony from the
following witnesses: The Honorable Marybeth Peters, Register,
U.S. Copyright Office, The Library of Congress; Chuck Hewitt,
President, Satellite Broadcasting and Communications
Association; William (Rik) Hawkins, Owner, Starpath of Hardin
County, Elizabethtown, Kentucky; Steven J. Cox, Senior Vice
President, New Ventures, DirecTV, Incorporated, El Segundo,
California; James F. Goodmon, President and Chief Executive
Officer, Capitol Broadcasting Company, Incorporated, Raleigh,
North Carolina; Tom Howe, Director and General Manager of North
Carolina University Center for Public Television, Public
Broadcasting Service (PBS)/National Public Radio (NPR); Thomas
J. Ostertag, General Counsel, Major League Baseball, Office of
the Commissioner; Fritz E. Attaway, Senior Vice President,
Motion Picture Association of America; Decker Anstrom,
President, National Cable Television Association; and Wade
Hargrove, Networks Affiliated Stations Alliance, Raleigh, North
Carolina.
On February 4, 1998, the Subcommittee conducted another
oversight hearing on copyright licensing regimes covering
retransmission of broadcast signals. The Subcommittee received
testimony from the following witnesses: Charles W. Ergen,
President and Chief Executive Officer of Echostar
Communications Corporation; Peter C. Boylan, III, President and
Chief Executive Officer of United Video Satellite Group; H.
Thomas Casey, Chief Executive Officer and President of
Primetime 24; Matthew M. Polka, President of the Small Cable
Business Association; William Sullivan, Board of Directors of
the National Association of Broadcasters; James J. Popham, Vice
President and General Counsel of the Association of Local
Television Stations; Bob Phillips, Chief Executive Officer of
the National Rural Telecommunications Cooperative; and Marsha
E. Kessler, Vice President, Copyright Royalty Distribution on
behalf of the Motion Picture Association of America.
On March 18, 1998, the Subcommittee met in open session and
ordered favorably reported the bill H.R. 3210, as amended, by
voice vote, a quorum being present. No further action was
taken.
Patents
21st Century Patent System Improvement Act, H.R. 400
Introduced by Subcommittee Chairman Coble, for himself, Mr.
Conyers, Mr. Goodlatte, Ms. Lofgren, Mr. Gekas, Mr. Cannon, Mr.
Condit, Mrs. Kelly, Mr. Bilbray, Mr. Berman, Mr. Horn, Mr.
Sensenbrenner, Mr. Towns, Mr. Hyde, Mr. Smith of Oregon, Mr.
LaHood, Ms. DeGette, Mr. Hinchey, Mr. Lewis of Georgia, Mr.
Wexler, Mr. Delahunt, Mr. Farr of California, Mrs. Meek of
Florida, Mr. Houghton, Mr. Nadler, Ms. Furse, Mr. Frost, Mr.
Chambliss, Mr. Dellums, Mrs. Lowey, Ms. Slaughter, Mr. Dicks,
Mr. Vento, Mr. Ackerman, Mr. Gutknecht, and Mr. Brown of
California, H.R. 400 contains several titles addressing and
solving major problems threatening our patent system. With the
exception of the title containing miscellaneous provisions,
each title consists of an independent bill that was the subject
of comprehensive hearings in the Subcommittee on Courts and
Intellectual Property over the last two Congresses. Each of
these titles also reflects changes that were made in response
to valuable comments submitted by expert witnesses, Members,
independent inventors, small businesses, large corporations,
universities and research institutions, industry organizations,
patent law associations, and the Patent and Trademark Office.
On February 26, 1997, the Subcommittee held a hearing on
H.R. 400. The Subcommittee received testimony from the
following witnesses: The Honorable Sue W. Kelly, U.S.
Representative, 19th District of New York; The Honorable Duncan
Hunter, U.S. Representative, 52nd District of California; The
Honorable Dana Rohrabacher, U.S. Representative, 45th District
of California; The Honorable Tom Campbell, 15th District of
California; The Honorable Stephen Horn, U.S. Representative,
38th District of California; The Honorable Bruce Lehman,
Assistant Secretary of Commerce and Commissioner of Patents and
Trademarks, Patent and Trademark Office, U.S. Department of
Commerce; John R. Kirk, Chair, Section of Intellectual Property
Law, American Bar Association; Michael K. Kirk, Executive
Director, American Intellectual Property Law Association; Chuck
Ludlam, Vice President for Government Relations, Biotechnology
Industry Organization; Erwin ``Bud'' Berrier, President,
Intellectual Property Owners; Mary Ann Alford, President,
International Trademark Association; Alan F. Holmer, President,
Pharmaceutical Research and Manufacturers of America; David L.
Hill, Chairman, Advisory Board, Alliance for American
Innovation; Harold C. Wegner, Professor, The George Washington
University National Law Center; Stephen H. Barram, Chief
Executive Officer, Integrated Services, Inc. and Delegate,
White House Conference on Small Business; Maureen Gilman,
Director of Legislation, National Treasury Employees Union; and
Ronald J. Stern, President, Patent Office Professional
Association.
On March 5, 1997, the Subcommittee met in open session and
ordered favorably reported the bill H.R. 400, amended, a quorum
being present. On March 12, 1997, the full Committee met in
open session and ordered favorably reported the bill H.R. 400,
as amended, a quorum being present (H. Rept. 105-39). The House
considered the bill H.R. 400 on April 17, 1997, and on April
23, 1997, agreed to an amendment by Ms. Kaptur that exempted
small business, independent investors and universities from
publication of patent application information until the patent
is granted; specifying that patent information can be published
before the patent is granted if the data has been made public
in foreign countries, the application has been filed with the
Patent and Trademark Office for 5 years or longer and the PTO
determines that the public interest would be served by
publication, or the inventor deliberately delays publication of
the patent. By a recorded vote of 220 in favor and 193 opposed,
H.R. 400 passed the House on April 23, 1997. H.R. 400 was
reported to the Senate by the Senate Committee on the Judiciary
on May 23, 1998. H.R. 400 was placed on the Senate Legislative
Calendar but was not taken up for a vote.
Patent and Trademark Office Surcharge Extension Act of 1997, H.R. 673
(H.R. 400)
Introduced by Subcommittee Chairman Coble, Ms. Lofgren, Mr.
Frank of Massachusetts, and Mr. Delahunt, H.R. 673 responds to
an aspect of the budget proposed by the Administration on
February 6, 1997, and to Congressional Appropriations actions
for the past 6 years. The Administration's budget proposal
would divert $92 million in fiscal year 1998 from the United
States Patent and Trademark Office, which is 100% user-fee
funded and receives no tax revenue, to subsidize other areas of
the government which are currently funded by tax dollars. In
fiscal year 1999, the Administration proposed that $116 million
be diverted. In fiscal year 1997, Congressional appropriators
diverted $54 million; this was a significant increase over
previous years. This legislation would correct this serious and
growing problem without harming the budget, so that the PTO can
use the all of the funds paid by applicants to process their
applications.
On February 26, 1997, the Subcommittee held a hearing on
H.R. 673, H.R. 811 and H.R. 400. The Subcommittee received
testimony regarding all three bills from all of the witnesses.
The witnesses are listed under H.R. 400.
The provisions of H.R. 673 were incorporated into H.R. 400.
Patent Term Restoration Act, H.R. 811
Introduced by Representative Dana Rohrabacher, for himself,
Ms. Kaptur, Mr. Campbell, Mr. Hunter, Mr. Forbes, Mr.
Abercrombie, Mr. Ackerman, Mr. Barr of Georgia (withdrew on
March 6, 1997), Mr. Bartlett of Maryland, Mr. Burton of
Indiana, Mr. Calvert, Mrs. Chenoweth, Mr. Condit, Mr. Cox of
California, Mr. Cunningham, Mr. Davis of Virginia, Mr. Dellums,
Mr. Doolittle, Mr. Duncan, Mr. Foley, Mr. Gillmor, Mr. Graham,
Mr. Hansen, Mr. Hayworth, Mr. Largent, Mr. Mascara, Mr. Ney,
Mr. Norwood, Mr. Paul, Mr. Royce, Mr. Sanford, Mr. Schiff, Mr.
Smith of Michigan, Mr. Stearns, Mr. Tiahrt, Mr. Traficant, Mr.
Walsh, Mr. Wamp, Ms. Waters, Mr. Bonior, Mr. McDade, Mr.
Ballenger, Mr. Cramer, Ms. Danner, Mr. Gibbons, Mr. LaTourette,
Mr. McIntosh, Mr. Pombo, Mr. Scarborough, Mr. Talent, Mr. Young
of Alaska, Mr. Lipinski, Mr. Miller of Florida, Mr. Dan
Schaefer of Colorado, Mr. Stump, Mr. Dickey, Mr. Barcia of
Michigan, Mr. Coburn, Mr. Sanders, Mr. Snowbarger, Mr. Smith of
New Jersey, and Mr. Kucinich, H.R. 811 would alter the current
patent law in such a way that the term of a patent would end on
the later of (a) 17 years from the date of grant of the patent
or (b) 20 years from the date on which the application for the
patent was filed in the United States, except if the
application contains a specific reference to an earlier filed
application or applications, from the date on which the
earliest of such non-provisional U.S. application was filed. It
also contains a patent disclosure provision that states that in
the event that a continuing patent application is filed that
claims the benefit of the filing date of a prior application
that was filed more than 60 months earlier, notices of the
original patent application and the continuing patent
application will be published and the public would be permitted
to inspect and copy the original patent application and the
continuing patent application.
On February 26, 1997, the Subcommittee held a hearing on
H.R. 811, H.R. 673, and H.R. 400. The Subcommittee received
testimony regarding all three bills from all of the witnesses.
The witnesses are listed under H.R. 400.
On March 5, 1997, the Subcommittee ordered H.R. 811 tabled.
Patent and Trademark Office Reauthorization Act, H.R. 3723
Introduced by Subcommittee Chairman Coble, H.R. 3723
authorizes necessary appropriations for the Patent and
Trademark Office (PTO) by adjusting the patent fee structure
set forth in 35 U.S.C. Sec. 41, and to prevent the diversion of
agency revenues for activities unrelated to PTO operations. The
bill lowers patent and trademark application fees for the first
time in history.
On April 30, 1998, the Subcommittee met in open session and
ordered favorably reported the bill H.R. 3723, amended, by
voice vote, a quorum being present. On May 6, 1998, the full
Committee met in open session and ordered favorably reported
the bill H.R. 3723, as amended, by voice vote, a quorum being
present (H. Rept. 105-528). H.R. 3723 passed the House under
suspension of the rules by voice vote on May 12, 1998. The
Senate passed H.R. 3723 on October 14, 1998.
The President signed H.R. 3723 on November 10, 1998. It is
Public Law 105-358.
Plant Patents Amendments Act, H.R. 1197
Introduced by Representative Robert F. Smith of Oregon, for
himself, Mr. Peterson of Pennsylvania, and Mr. Farr of
California, H.R. 1197 extends the same protection to plant
parts as exists for plants under the Patent Act; and authorizes
the Patent and Trademark Office (PTO) to implement a statewide
computer network program, thereby enabling small inventors to
have greater access to information in PTO depository libraries.
H.R. 1197 passed the House under suspension of the rules on
October 9, 1998. It was subsequently amended by the Senate. The
amendment was accepted by the House on October 16, 1998. H.R.
1197 was sent to the President and was signed into law on
October 27, 1998. It is Public Law 105-289.
Technology Transfer Commercialization Act of 1997, H.R. 2544/To improve
the ability of federal agencies to license federally owned
inventions, H.R. 4859
H.R. 2544 was introduced by Representatives Constance A.
Morella, Mr. Sensenbrenner, Mr. Brown of California, Mr. Barcia
of Michigan, Mrs. Tauscher, and Mr. Cook. The Committee on the
Judiciary did not conduct a markup of H.R. 2544, but in a
letter from Chairman Hyde to Chairman Sensenbrenner, it did not
waive its jurisdictional prerogative in this area. The
Committee on the Judiciary was discharged from further
consideration of the bill H.R. 2544. On July 14, 1998, H.R.
2544 passed the House under suspension of the rules.
H.R. 4859 was introduced by Representatives Constance A.
Morella, and Mr. Brown of California. The Committee on the
Judiciary was discharged from further consideration of the bill
H.R. 4859. On October 20, 1998, H.R. 4859 passed the House.
To provide for the enactment of user fees proposed by the President in
his budget submission under section 1105(a) of title 31, United
States Code, for fiscal year 1999, H.R. 3989
H.R. 3989 was introduced by Representative Gerald Solomon.
The Committee on the Judiciary was discharged from further
consideration of the bill H.R. 3989 on June 5, 1998. H.R. 3989
failed passage by the House on June 5, 1998.
Trademarks
Madrid Protocol Implementation Act, H.R. 567
Introduced by Subcommittee Chairman Coble, H.R. 567
implements the Madrid Protocol Agreement (``Protocol'') which
provides for an international registration system for
trademarks.
On May 22, 1997, the Subcommittee held a hearing on H.R.
567. The Subcommittee received testimony from the following
witnesses: The Honorable Bruce A. Lehman, Commissioner and
Assistant Secretary, United States Patent and Trademark Office,
United States Department of Commerce; Shaun Donnelly, Deputy
Assistant Secretary, Trade Policy and Programs, United States
Department of State, Bureau of Economics and Business Affairs;
Michael K. Kirk, Executive Director, American Intellectual
Property Law Association; and David C. Stimpson, President,
International Trademark Association.
On June 10, 1997, the Subcommittee met in open session and
ordered favorably reported the bill H.R. 567 by voice vote, a
quorum being present. On June 18, 1997, the full Committee met
in open session and ordered favorably reported the bill H.R.
567 by voice vote, a quorum being present (H. Rept. 105-199).
H.R. 567 passed the House under suspension of the rules by
voice vote on May 5, 1998.
Trade Dress Protection Act, H.R. 3163
Introduced by Subcommittee Chairman Coble, H.R. 3163
reasserts that trade dress provides protection for the
appearance or configuration of a product. In a consumer
society, much attention is paid to the appearance of those
articles placed for sale to the public at large. Companies
invest tremendous resources in designing the configuration and
packaging so that the average consumer can locate and identify
the goods or services as the product of a company they know and
favor. The product's appearance, or trade dress, therefore
plays a significant role in identifying the source of the
product to the consumer. Trade dress is defined as the total
image and overall appearance of a product, together with all
the elements making up the overall image that serves to
identify the product as presented to the consumer.
Traditionally, trade dress referred to product packaging or
labeling, but has expanded to encompass the configuration or
design of the product itself, as well as settings or styles of
doing business. Prior to 1992, the Circuit Courts were split
over whether trade dress could be protected if it was
inherently distinctive, or if secondary meaning also had to be
established to make it eligible for protection.
In 1992, the Supreme Court held that trade dress is
protectible if it is inherently distinctive or if it has
acquired secondary meaning. Two Pesos, Inc. v. Taco Cabana,
Inc., 505 U.S. 763 (1992). However, the Court did not
specifically address the standard to be applied in determining
whether a particular trade dress is inherently distinctive. In
the years succeeding Two Pesos, courts throughout the country
have struggled to settle on a standard for determining inherent
distinctiveness for trade dress. H.R. 3163 addresses that
issue.
On February 12, 1998, the Subcommittee held a hearing on
H.R. 3163. The Subcommittee received testimony from the
following witnesses: Jeffrey M. Samuels, Esq., Office of
Jeffrey M. Samuels, P.C.; Michael K. Kirk, Executive Director,
American Intellectual Property Law Association; David C.
Stimson, President, International Trademark Association; and
Theodore H. Davis, Jr., Partner, Kilpatrick, Stockton, LLP, on
behalf of the American Bar Association. No further action was
taken on H.R. 3163.
Trademark Anticounterfeiting Act of 1998, H.R. 3891
Introduced by Representative Bob Goodlatte, H.R. 3891
safeguards the ability of manufacturers to exert better control
over the use of their products with which valuable marks are
associated by protecting the integrity of corresponding product
identification codes contained in product packaging.
On May 21, 1998, the Subcommittee held a hearing on H.R.
3891. The Subcommittee received testimony from the following
witnesses: Michael K. Kirk, Executive Director, American
Intellectual Property Law Association; Fred Mostert, President-
Elect, International Trademark Association; John S. Bliss,
President, International Anti-Counterfeiting Coalition; Jeffrey
M. Samuels, Esq., Law Offices of Jeffrey M. Samuels, P.C.; Garo
A. Partoyan, General Counsel for Marketing and Technology,
Mars, Inc., on behalf of the Intellectual Property Owners.
On June 4, 1998, the Subcommittee met in open session and
ordered favorably reported the bill H.R. 3891, amended, by
voice vote, a quorum being present. On July 16, 1998, the full
Committee met in open session and ordered favorably reported
the bill H.R. 3891, as amended with additional full Committee
amendments (H. Rept. 105-650). On September 28, 1998, H.R. 3891
did not pass the House under suspension of the rules, a two-
thirds affirmative vote required, by a recorded vote of 245 in
support and 167 in opposition.
Trademark Law Treaty Implementation Act, H.R. 1661 (S. 2193)
Introduced by Subcommittee Chairman Coble, H.R. 1661
contains changes which are necessary to bring U.S. law in
compliance with The Trademark Law Treaty (``TLT'') so
ratification can occur. TLT harmonizes procedures of national
trademark offices by establishing maximum requirements a
``contracting party'' (member state or intergovernmental
organization) can impose for trademark applications or for
granting filing dates. The treaty also eliminates many formal
requirements governing renewals, recordation of assignments,
changes of names or addresses, powers of attorney, drawings,
signatures, and the like. A key feature of the TLT is the
elimination of the legalization of signatures on documents,
except in the case of a surrender of registration. Other
important TLT provisions improve the treatment of multi-class
and ``divisional'' applications.
For the most part, H.R. 1661 does not change U.S. domestic
substantive law. Rather, under the treaty, and like the United
States, other countries must provide for 10-year periods of
protection and renewal (no more, and no less) in international
applications. This reform is consistent with a trend in the
international trademark community. In addition, countries must
provide for service mark registration. Again, this obligation
dovetails with an ongoing trend, and is otherwise imposed on
all members of the World Trade Organization (WTO).
On May 22, 1997, the Subcommittee held a hearing on H.R.
1661. The Subcommittee received testimony from the following
witnesses: The Honorable Bruce Lehman, Commissioner and
Assistant Secretary, United States Patent and Trademark Office,
United States Department of Commerce; Shaun Donnelly, Deputy
Assistant Secretary, Trade Policy and Programs, United States
Department of State, Bureau of Economics and Business Affairs;
Michael K. Kirk, Executive Director, American Intellectual
Property Law Association; and David C. Stimson, President,
International Trademark Association.
On June 10, 1997, the Subcommittee met in open session and
ordered favorably reported the bill H.R. 1661, amended, by
voice vote, a quorum being present. On June 18, 1997, the full
Committee met in open session and ordered favorably reported
the bill H.R. 1661, as amended, by voice vote, a quorum being
present (H. Rept. 105-194). H.R. 1661 passed the House under
suspension of the rules by a recorded vote of 425 in favor and
0 in opposition. The Senate companion bill, S. 2193, passed the
Senate on September 17, 1998. S. 2193 passed the House under
suspension of the rules by voice vote on October 9, 1998. S.
2193 was signed into law on October 30, 1998, and is Public Law
105-330.
To amend the Trademark Act of 1946 with respect to the dilution of
famous marks, H.R. 3119
Introduced by Representative Roy Blunt, H.R. 3119 would bar
an owner of a famous mark from bringing an action based on
dilution more than 1 year after the date of registration of a
third party's otherwise infringing mark or its use in commerce,
whichever is later.
On May 21, 1998, the Subcommittee held a hearing on H.R.
3119. The Subcommittee received testimony regarding H.R. 3119
from the following witnesses: The Honorable Roy Blunt, U.S.
Representative, 7th District of Missouri, accompanied by
Michael Ingram, President, Ingram Enterprises, Inc.; Michael K.
Kirk, Executive Director, American Intellectual Property Law
Association; Fred Mostert, President-Elect, International
Trademark Association; and Garo A. Partoyan, General Counsel
for Marketing and Technology, Mars, Inc., on behalf of the
Intellectual Property Owners. No further action was taken on
H.R. 3119.
Registration of Insignia of American Indian Tribes, S. 2193 and H.R.
4328
Introduced by Senator Orrin Hatch, S. 2193 consists of
changes to public law that will enable the United States to
implement the Trademark Law Treaty. It also empowers the
Commissioner of Patents and Trademarks to conduct a study of
the official insignia of federally- and state-recognized native
American tribes. S. 2193, passed the Senate on September 17,
1998. S. 2193 passed the House under suspension of the rules by
voice vote on October 9, 1998. S. 2193 was signed into law on
October 30, 1998, and is Public Law 105-330.
Introduced by Representative Frank R. Wolf, H.R. 4328, the
Omnibus Appropriations Bill, contained a provision, section
210, prohibiting the Patent and Trademark Office from using any
funds to process or register any application submitted with the
Patent and Trademark Office for any mark identical to the
official tribal insignia of any federally recognized Indian
tribe for a period of 1 year from the date of enactment of H.R.
4328. H.R. 4328 is Public Law 105-277.
International Expropriation of Registered Marks, H.R. 4328
Introduced by Representative Frank R. Wolf, H.R. 4328, the
Omnibus Appropriations bill, contained a provision, section
211, which states that no transaction or payment shall be
authorized or approved pursuant to section 515.527 of title 31,
Code of Federal Regulations, with respect to a mark, trade
name, or commercial name that is the same as or substantially
similar to a mark, trade name, or commercial name that is was
used in connection with a business or assets that were
confiscated unless the original owner of the mark, trade name,
or commercial name, or the bona fide successor-in-interest has
expressly consented. This provision prohibits any U.S. court
from recognizing, enforcing or otherwise validating any
assertion of rights by a designated national based on common
law rights or registration obtained under section 515.527 of a
confiscated mark, trade name, or commercial name. It also
prohibits any U.S. court from recognizing, enforcing or
otherwise validating any assertion of treaty rights by a
designated national or its successor-in-interest under the
Trademark Act of 1946 for a mark, trade name, or commercial
name that is the same as or substantially similar to a mark,
trade name, or commercial name that was used in connection with
a business or assets that were confiscated unless the original
owner of the mark or the bona fide successor-in-interest has
expressly consented.
On May 21, 1998, the Subcommittee held an oversight hearing
on the issue of international expropriation of registered
marks. This issue was brought to the attention of the Congress
by the Bacardi Corporation. It acquired a Cuban rum company
along with its trademark, ``Havana Club'' from Cuban owners who
fled the country. The trademark was expropriated by a Cuban
state enterprise. Litigation as to who owns the trademark is
still pending. Barcardi wanted Congress to amend the Lanham Act
by specifying that the PTO could not refuse registration to an
otherwise valid trademark if the applicant demonstrates that
he/she or a predecessor in interest owned the mark after
January 1, 1959; that the mark, or a business property
associated with the mark, was expropriated without
compensation; and that the owner or his/her predecessor in
interest has not authorized another party to make exclusive use
of the mark. The Bacardi proposal would also compel the PTO to
deny registration, recordation, or recognition to a mark if an
opposer (the rightful owner) demonstrates these same
conditions.
The Subcommittee received testimony from the following
witnesses: Michael K. Kirk, Executive Director, American
Intellectual Property Law Association; Fred Mostert, President-
Elect, International Trademark Association; Garo A. Partoyan,
General Counsel for Marketing and Technology, Mars, Inc., and
Ignacio E. Sanchez, Kelly, Drye & Warren, LLP.
Next Generation Internet Research Act of 1998, H.R. 3332 (S. 1609)
Introduced by Senator Frist, S. 1609 contained an amendment
offered by Senator Leahy which created a study by the National
Research Council, in cooperation with the Patent and Trademark
Office, the National Telecommunications and Information
Administration, and other Department of Commerce entities, on
short-term and long-term effects on trademark rights of adding
new generic top-level domains and related dispute resolution
procedures.
On June 6, 1998, the Senate passed S. 1609 and it was
referred to the House Committee on Science. The Committee on
Science included the Leahy amendment to S. 1609 in H.R. 3332,
the ``Next Generation Research Act of 1998.'' H.R. 3332 was
passed in the House under suspension of the rules on September
14, 1998. H.R. 3332 passed in the Senate on October 8, 1998.
The President signed H.R. 3332 into law on October 28, 1998. It
is Public Law 105-305.
Other Intellectual Property Rights
Security and Freedom Through Encryption (SAFE) Act, H.R. 695
Introduced by Representative Bob Goodlatte, for himself,
Ms. Lofgren, Mr. DeLay, Mr. Boehner, Mr. Coble, Mr.
Sensenbrenner, Mr. Bono, Mr. Pease, Mr. Cannon, Mr. Conyers,
Mr. Boucher, Mr. Gekas, Mr. Smith of Texas, Mr. Inglis of South
Carolina, Mr. Bryant, Mr. Chabot, Mr. Barr of Georgia, Ms.
Jackson Lee of Texas, Ms. Waters, Mr. Ackerman, Mr. Baker, Mr.
Bartlett of Maryland, Mr. Campbell, Mr. Chambliss, Mr.
Cunningham, Mr. Davis of Virginia, Mr. Dickey, Mr. Doolittle,
Mr. Ehlers, Mr. Engel, Ms. Eshoo, Mr. Everett (withdrew on July
30, 1997), Mr. Ewing, Mr. Farr of California, Mr. Gejdenson,
Mr. Gillmor, Mr. Goode, Ms. Norton, Mr. Horn, Ms. Eddie Bernice
Johnson of Texas (withdrew on May 13, 1997), Mr. Sam Johnson of
Texas, Mr. Kolbe, Mr. McIntosh, Mr. McKeon, Mr. Manzullo, Mr.
Matsui, Mr. Mica, Mr. Minge, Mr. Moakley, Mr. Nethercutt, Mr.
Packard, Mr. Sessions, Mr. Upton, Mr. White, Ms. Woolsey, Mr.
Hastings of Washington, Mr. Cook, Mr. Fox of Pennsylvania, Mrs.
Morella, Mr. Bilbray, Mr. Solomon (withdrew on April 29, 1997),
Mrs. Myrick, Mr. DeFazio, Mr. Watkins, Mr. Franks of New
Jersey, Mr. Martinez, Mr. Shays, Mr. Nadler, Mr. Rothman
(withdrew on July 24, 1997), Mr. Hostettler, Mr. Faleomavaega,
Mrs. Linda Smith of Washington, Mr. Paxon, Mr. Weldon of
Florida, Mr. Gordon, Mr. Hutchinson, Ms. Rivers, Mr.
Snowbarger, Mrs. Tauscher, Mr. Delahunt, Mr. Rohrabacher, Mr.
Cooksey, Mr. Moran of Virginia, Mr. Gallegly, Mr. Camp, Mr.
Wexler, Mr. Weller, Mr. Sherman, Mr. Dreier, Mr. Calvert, Mr.
Capps, Mr. Linder, Mr. McInnis, Mr. Graham, Mr. Thomas, Ms.
McKinney, Ms. McCarthy of Missouri, Mr. Frank of Massachusetts,
Mr. Sisisky, Mr. Forbes, Mr. Blunt, Mr. Istook, Mr. Pickering,
Mr. Dooley of California, Mr. Latham, Mr. Cox of California,
Mr. Roemer, Mr. Fazio of California, Mr. Adam Smith of
Washington, Mr. Kind of Wisconsin, Mr. Ballenger, Mr. Ney, Mr.
Salmon, Mr. Houghton, Mr. McHugh, Ms. Furse, Mr. Hastings of
Florida, Mr. Diaz-Balart, Mr. King of New York, Ms. Slaughter,
Mr. Frost, Mr. Burton of Indiana, Ms. Dunn of Washington, Ms.
Christian-Green, Mr. English of Pennsylvania, Mr. Lampson, Mr.
Brady, Mr. Smith of New Jersey, Mrs. Chenoweth, Mr. Coburn,
Mrs. Cubin, Mr. Jones (withdrew on September 8, 1997), Mr. Bob
Schaffer, Mr. Barton of Texas, Mr. Largent, Mr. Clement, Mr.
Hilliard, Mr. Luther, Mr. Crapo, Mr. Rogan, Mr. Andrews, Mr.
Bonilla, Ms. Ros-Lehtinen, Mr. Gutknecht, Mr. Hayworth, Mr.
Bunning of Kentucky (withdrew on July 30, 1997), Mr. Sununu,
Mr. Scarborough, Mr. Neumann, Mr. Sanford, Mr. Norwood, Ms.
Pryce of Ohio, Mr. Lewis of Kentucky, Mr. Kasich, Mr. Archer,
Mr. Hansen, Mr. Herger, Mr. Riley, Mr. Hill, Mr. Tauzin, Mr.
Moran of Kansas, Mr. Burr of North Carolina, Mr. Blumenauer,
Mr. Pomeroy, Mr. Riggs, Mr. Kingston, Mr. Miller of California,
Mr. Duncan, Mr. Whitfield, Mr. Smith of Oregon, Mr. Quinn, Mr.
Kennedy of Massachusetts, Mrs. Kelly, Mr. Metcalf, Mr. Markey,
Mr. Neal of Massachusetts, Mrs. Emerson, Mr. Christensen, Mr.
Watts of Oklahoma, Mr. Souder, Mr. Pombo, Mr. Stenholm, Mr.
Tiahrt, Mr. McGovern, Mr. Parker, Mr. Wicker, Mr. Barrett of
Nebraska, Mr. Gephardt, Mr. Kim, Mrs. Johnson of Connecticut,
Mr. Lucas of Oklahoma, Mr. Brown of California, Mr.
Knollenberg, Mr. Talent, Mr. Tierney, Mr. Klug, Mr. Jenkins,
Mr. Condit, Mr. Hall of Texas, Mr. Bachus, Mr. Crane, Mr. Wamp,
Mr. Castle, Mr. LaHood, Mr. Goodling, Mr. Shimkus, Mr. Serrano,
Mr. Holden, Mr. Hobson, Mr. Rahall, Mr. Thompson, Mr. Thune,
Mr. Clyburn, Mr. Hilleary, Mr. Deal of Georgia, Mr. Collins,
Mr. Dan Schaefer of Colorado, Mr. Thornberry (withdrew on
September 4, 1997), Mr. Hall of Ohio, Mr. Livingston, Mr.
Hoekstra, Mr. Wise, Mr. Filner, Mr. McDermott, Ms. Sanchez,
Mrs. Thurman, Mr. Tanner, Mr. Pastor, Ms. Kaptur, Mr. Lewis of
Georgia, Mr. Jackson of Illinois, Ms. Millender-McDonald, Mr.
Cummings, Mr. Jefferson, Mr. Ford, Mr. Barrett of Wisconsin,
Mr. Fattah, Mr. Barcia of Michigan, Ms. Holley of Oregon, Mrs.
Northup, Mr. Vento, Mr. Bonior, Mrs. Clayton, Mrs. Kennelly of
Connecticut, Mr. Pallone, Mr. Olver, Ms. Kilpatrick, Ms.
DeLauro, Mrs. Meek of Florida, Ms. Stabenow, Mr. Stearns, Mr.
Hefley (withdrew on July 30, 1997), Mr. Radanovich, Mr. Taylor
of North Carolina, Mr. Walsh, Mr. Nussle, Mr. Davis of
Illinois, and Mr. Rush, H.R. 695 makes a series of changes to
U.S. encryption policy which will facilitate the use of
encryption. Current policy does not restrict the domestic use,
sale, or import of encryption. Section 2 of H.R. 695 generally
codifies that policy by affirmatively prohibiting restrictions
on the domestic use and sale of encryption. It also prohibits
any mandatory key escrow system, allowing voluntary systems to
develop in the marketplace, and provides criminal penalties for
the knowing and willful use of encryption to avoid detection of
other federal felonies.
At the same time, however, the export of strong encryption
products is tightly restricted under the export control laws.
Section 3 of H.R. 695 significantly relaxes those export
controls. In addition, section 4 requires that the Attorney
General compile statistics on instances in which these new
policies may interfere with the enforcement of federal criminal
laws.
On March 20, 1997, the Subcommittee held a hearing on H.R.
695. The Subcommittee received testimony from the following
witnesses: The Honorable William Reinsch, Under Secretary,
Bureau of Export Administration, Department of Commerce; The
Honorable William Crowell, Deputy Director, National Security
Agency; The Honorable Robert Litt, Deputy Assistant Attorney
General, Criminal Division, United States Department of
Justice; Mrs. Phyllis Schlafly, President, Eagle Forum; Ira
Rubenstein, Senior Corporate Attorney, Microsoft Corporation,
on behalf of the Business Software Alliance; Roberta Katz,
Senior Vice-President, General Counsel, and Secretary, Netscape
Communications Corporation, on behalf of the Information
Technology Association of America and the Software Publishers
Association; Jonathan Seybold, Chairman of the Executive
Committee and Director, Pretty Good Privacy, Inc.; Thomas
Morehouse, President and Chief Executive Officer, SourceFile,
Inc.; Grover Norquist, President, Americans for Tax Reform;
Philip Karn, Staff Engineer, Qualcomm, Inc.; Marc Rotenberg,
Director, Electronic Privacy Information Center; and Jerry
Berman, Executive Director, Center for Democracy and
Technology.
On April 30, 1997, the Subcommittee met in open session and
ordered favorably reported the bill H.R. 695, by voice vote, a
quorum being present. On May 14, 1997, the full Committee met
in open session and ordered favorably reported the bill H.R.
695, amended, by voice vote, a quorum being present (H. Rept.
105-108, part 1). On July 25, 1997, the Committee on
International Relations ordered favorably reported the bill
H.R. 695, amended, to the House (H. Rept. 105-108, part 2). On
September 12, 1997, the Committee on National Security ordered
favorably reported the bill H.R. 695, amended, to the House (H.
Rept. 105-108, part 3). On September 16, 1997, the Permanent
Select Committee on Intelligence ordered favorably reported the
bill H.R. 695, amended, to the House (H. Rept. 105-108, part
4). On September 29, 1997, the Committee on Commerce ordered
favorably reported the bill H.R. 695, amended, to the House (H.
Rept. 105-108, part 5). H.R. 695 was placed on the Union
Calendar but it was not considered.
Vessel Hull Design Protection Act, H.R. 2696
Introduced by Subcommittee Chairman Coble and Mr. Shaw,
H.R. 2696 offers limited protection for original designs of
vessel hulls which are often misappropriated by persons who
indulge in a marine industry practice known as ``hull
splashing.''
On October 23, 1997, the Subcommittee held a hearing on
H.R. 2696. The Subcommittee received testimony from the
following witnesses: The Honorable Marybeth Peters, Register,
Copyright Office of the United States; William T. Fryer, III,
Professor, University of Baltimore School of Law; Mick
Blackistone, Vice President, Government Relations, National
Marine Manufacturers Association; Don Cramer, Corporate
Counsel, Bayliner Marine Corporation; and J.J. Marie,
President, Zodiak of North America, Inc.
On February 26, 1998, the Subcommittee met in open session
and ordered favorably reported the bill H.R. 2696, amended, by
voice vote, a quorum being present. On March 3, 1998, the full
Committee met in open session and ordered favorably reported
the bill H.R. 2696, as amended, by voice vote, a quorum being
present (H. Rept. 105-436). H.R. 2696 passed the House under
suspension of the rules on March 18, 1998. During the
conference on H.R. 2281, the ``Digital Millenium Copyright
Act,'' the provisions of H.R. 2696 were incorporated into the
conference report on H.R. 2281, along with other additions.
H.R. 2281 was signed by the President on October 28, 1998, and
is Public Law 105-304.
Collections of Information Antipiracy Act, H.R. 2652
Introduced by Subcommittee Chairman Coble, Mr. Hall of
Ohio, Mrs. Morella, Mr. Vento, Mr. LaHood, and Mrs. Tauscher,
H.R. 2652 responds to a need to complement current copyright
law with a misappropriation law which prevents the wholesale
copying of another's collection of information which harms the
market of the original collector. The bill provides an
incentive for the investment and development of collections of
information while maintaining sufficient protections for
continued access and use of collections by not-for-profit
educational, library, research and scientific entities.
The Collections of Information Antipiracy Act prohibits the
misappropriation of valuable commercial collections by
unscrupulous competitors who grab data collected by others,
repackage it, and market a product that threatens competitive
injury to the original collection. This protection is modeled
in part on the Lanham Act, which already makes similar kinds of
unfair competition a civil wrong under federal law.
Importantly, this bill would maintain existing protections for
collections of information afforded by copyright and contract
rights. It is intended to supplement these legal rights, not
replace them.
On October 23, 1997, the Subcommittee held a hearing on
H.R. 2652. The Subcommittee received testimony from the
following witnesses: Paul Warren, Executive Publisher, Warren
Publishing, Incorporated, on behalf of the Coalition Against
Database Piracy; Laura D'Andrea Tyson, Former National Economic
Advisor to the President and Former Chair of the White House
Counsel on Economic Advisors, Consultant to Reed-Elsevier,
Inc., and the Thomson Corporation; James G. Neal, Sheridan
Director of the Milton S. Eisenhower Library, Johns Hopkins
University; Dr. William A. Wulf, President, National Academy of
Engineering, on behalf of the National Research Council;
Professor Jerome A. Reichman, Visiting Professor, University of
Michigan Law School, Professor of Law, Vanderbilt University,
Senior Advisor to the National Research Council; and Dr. Robert
S. Ledley, Director of Medical Computing, Biophysics Division,
Georgetown University Medical Center.
On February 12, 1998, the Subcommittee held a hearing on
H.R. 2652. The Subcommittee received testimony from the
following witnesses: Robert Aber, Senior Vice President and
General Counsel, Nasdaq Stock Market; Dr. Debra W. Stewart,
Dean of the Graduate School, North Carolina State University,
on behalf of the Association of American Universities; Richard
Corlin, M.D., Speaker of the House of Delegates, American
Medical Association; William Hammack, President, The Sunshine
Pages; Professor Jane Ginsberg, Columbia University School of
Law; Jonathan Band, Partner, Morrison & Foerester, LLP, on
behalf of the On-line Banking Association; and Tim Casey,
Information Technology Association of America.
On February 26, 1998, the Subcommittee met in open session
and ordered favorably reported the bill H.R. 2652, amended, by
voice vote, a quorum being present. On March 3, 1998, the full
Committee met in open session and ordered favorably reported
the bill H.R. 2652, as amended, by voice vote, a quorum being
present (H. Rept. 105-436). H.R. 2652 passed the House under
suspension of the rules on March 18, 1998. The provisions of
H.R. 2652 were incorporated by the House into H.R. 2281, the
``Digital Millenium Copyright Act,'' but were not included in
the conference report on H.R. 2281.
OVERSIGHT ACTIVITIES
Judicial Discipline and Misconduct
On May 15, 1998, the Subcommittee held an oversight hearing
on the issue of judicial discipline and misconduct. The
Honorable Bob Barr, U.S. Representative, 7th District of
Georgia; The Honorable Tom DeLay, U.S. Representative, 22nd
District of Texas; The Honorable John N. Hostettler, U.S.
Representative, 8th District of Indiana; The Honorable Nita M.
Lowey, U.S. Representative, 18th District of New York; Thomas
Jipping, Director of the Center for Law & Democracy, Judicial
Selection Monitoring Project, Free Congress Foundation;
Charlotte Stout, Greenfield, Tennessee; Bruce Fein, McLean,
Virginia; Lino Graglia, Professor, University of Texas School
of Law; Roger Pilon, Director for the Center for Constitutional
Studies, Cato Institute; and Wade Henderson, Executive
Director, Leadership Conference, Washington, D.C.
Music Licensing in Restaurants and Retail and Other Establishments
On July 17, the Subcommittee held an oversight hearing on
the issue of music licensing in restaurants and retail and
other establishments. The Subcommittee received testimony from
the following witnesses: The Honorable Marybeth Peters,
Register of Copyrights, Copyright Office of the United States,
The Library of Congress; Robert Stoll, Administrator, Office of
Legislative Affairs, United States Department of Commerce,
Patent and Trademark Office; Wayland Holyfield, President,
Nashville Songwriters' Association International, on behalf of
the American Society of Composers Authors and Publishers; Mac
Davis, Songwriter, on behalf of Broadcast Music Incorporated;
Pat Collins, Senior Vice-President, Licensing, SESAC, Inc.;
Debra Leach, Executive Director, National Licensed Beverage
Association; Peter Kilgore, General Counsel, National
Restaurant Association; Pete Madland, President, Wisconsin
Tavern League, Owner of ``Pete's Landing''; Thelma Showman,
Owner, Thelma Showman's School of Dance; and Gary Shapiro,
President, Consumer Electronics Manufacturers Association.
Electronic Copyright Piracy
On March 26, 1998, the Subcommittee conducted an oversight
hearing on privacy in electronic communications. The hearing
focused on privacy over the Internet, privacy in electronic
telecommunications, and whether and to what extent changes in
the law or government regulation is necessary.
The Subcommittee received testimony from the following
witnesses: Ambassador, David Aaron, Under Secretary of Commerce
for International Trade, United States Department of Commerce;
David Medine, Associate Director for Credit Practices, Bureau
of Consumer Protection, Federal Trade Commission; Professor
Fred H. Cate, Louis F. Niezen Faculty Fellow, Indiana
University School of Law; Marc Rotenberg, Executive Director,
Electronic Privacy Information Center; and Deirdre Mulligan,
Staff Counsel, Center for Democracy and Technology.
Effect of Pre-1978 Distribution of Recordings Containing Musical
Compositions
On June 27, 1997, the Subcommittee held an oversight
hearing on the effect of pre-1978 distribution of recordings
containing musical compositions. The Subcommittee received
testimony from the following witnesses: Paul Williams,
Songwriter, on behalf of the American Society of Composers,
Authors and Publishers; and Ed Murphy, President, National
Music Publishers Association.
Copyright Term Extension
On June 27, 1997, the Subcommittee held an oversight
hearing on the issue of copyright term extension. The
Subcommittee received testimony regarding copyright term
extension from the following witnesses: Fritz Attaway, General
Counsel, Motion Picture Association of America; George David
Weiss, Songwriter, Songwriters Guild of America; Frances
Preston, President, Broadcast Music Incorporated; Julius
Epstein, Author of ``Casablanca,'' Writers Guild of America,
West; and Professor Jerome Reichman, Vanderbilt Law School.
Copyright Per Program Licenses
On June 27, 1997, the Subcommittee held an oversight
hearing on the issue of per program licenses, which are
addressed in H.R. 789. The Subcommittee received testimony from
the following witnesses: Bob Sterling, President, Coalition to
Save America's Gospel Music Heritage; Ed Atsinger, President,
Salem Communications Corporation; and Dirk Hallemeier, Radio
Station Owner, St. Louis Mid-American Gospel.
Copyright Licensing Regimes Covering Retransmission of Broadcast
Signals
On October 30, 1997, the Subcommittee held an oversight
hearing on copyright licensing regimes covering retransmission
of broadcast signals. The Subcommittee received testimony from
the following witnesses: The Honorable Marybeth Peters,
Register, U.S. Copyright Office, The Library of Congress; Chuck
Hewitt, President, Satellite Broadcasting and Communications
Association; William (Rik) Hawkins, Owner, Starpath of Hardin
County, Elizabethtown, Kentucky; Steven J. Cox, Senior Vice
President, New Ventures, DirecTV, Incorporated, El Segundo,
California; James F. Goodmon, President and Chief Executive
Officer, Capitol Broadcasting Company, Incorporated, Raleigh,
North Carolina; Tom Howe, Director and General Manager of North
Carolina University Center for Public Television, Public
Broadcasting Service (PBS)/National Public Radio (NPR); Thomas
J. Ostertag, General Counsel, Major League Baseball, Office of
the Commissioner; Fritz E. Attaway, Senior Vice President,
Motion Picture Association of America; Decker Anstrom,
President, National Cable Television Association; and Wade
Hargrove, Networks Affiliated Stations Alliance, Raleigh, North
Carolina.
On February 4, 1998, the Subcommittee conducted another
oversight hearing on copyright licensing regimes covering
retransmission of broadcast signals. The Subcommittee received
testimony from the following witnesses: Charles W. Ergen,
President and Chief Executive Officer of Echostar
Communications Corporation; Peter C. Boylan, III, President and
Chief Executive Officer of United Video Satellite Group; H.
Thomas Casey, Chief Executive Officer and President of
Primetime 24; Matthew M. Polka, President of the Small Cable
Business Association; William Sullivan, Board of Directors of
the National Association of Broadcasters; James J. Popham, Vice
President and General Counsel of the Association of Local
Television Stations; Bob Phillips, Chief Executive Officer of
the National Rural Telecommunications Cooperative; and Marsha
E. Kessler, Vice President, Copyright Royalty Distribution on
behalf of the Motion Picture Association of America.
Internet Domain Name Trademark Protection
On November 5, 1997, the Subcommittee conducted an
oversight hearing on Internet domain name trademark protection.
The Subcommittee received testimony from the following
witnesses: The Honorable Bruce Lehman, Assistant Secretary of
Commerce and Commissioner of Patents and Trademarks, Patent and
Trademark Office, United States Department of Commerce; Gabriel
A. Battista, Chief Executive Officer, Network Solutions, Inc.,
Michael K. Kirk, Executive Director, American Intellectual
Property Law Association; David Stimson, President,
International Trademark Association; John Wood, Senior Internet
Consultant, PRINCE, plc; and Douglas J. Wood, Executive
Partner, Hall, Dickler, Kent, Friedman & Wood, on behalf of the
Coalition for Advertising Supported Information and
Entertainment.
Attorneys Fees and the Proposed Global Tobacco Settlement
On December 10, 1997, the Subcommittee held a hearing on
attorneys fees and the proposed global tobacco settlement. The
Subcommittee received testimony from the following witnesses:
The Honorable Scott McInnis, U.S. Representative, 3rd District
of Colorado; The Honorable Christopher Cox, U.S.
Representative, 47th District of California; The Honorable Paul
McHale, U.S. Representative, 15th District of Pennsylvania;
Michael Moor, Attorney General, State of Mississippi; Richard
F. Scruggs, Esq., Scruggs, Millette, Lawson, Bozeman & Dent;
Joseph Rice, Esq., Ness, Motley, Loadholt, Richardson & Poole;
C. Steven Yerrid, Esq., Yerrid, Knopik & Mudano.
Mass Torts and Class Action Lawsuits
On March 5, 1998, the Subcommittee held an oversight
hearing on the subject of mass torts and class actions. The
Subcommittee received testimony from the following witnesses:
The Honorable James P. Moran, U.S. Representative, 8th District
of Virginia; Richard L. Thornburgh, Esq., Kirkpatrick &
Lockhart, LLP; The Honorable Anthony J. Scirica, United States
Circuit Judge, U.S. Court of Appeals for the 3rd Circuit; John
P. Frank, Esq., Lewis & Roca; Professor Susan P. Koniak, Boston
University School of Law; Ralf G. Wellington, Esq., Schnader,
Harrison, Segal & Lewis, LLP; Jack W. Martin, Vice President-
General Counsel, Ford Motor Company; John L. McGoldrick, Senior
Vice President for Law and Strategic Planning and General
Counsel, Bristol-Meyers Squibb Company; Elizabeth J. Cabraser,
Attorney at Law, Lief, Cabraser, Heinmann & Bernstein, LLP; and
Dr. John B. Hendricks, President, Alabama Cryogenic
Engineering, Inc.
U.S. Patent and Trademark Office
On March 19, 1998, the Subcommittee conducted an oversight
hearing on the administration and operations of the Patent and
Trademark Office. The Subcommittee received testimony from the
following witnesses: The Honorable Bruce A. Lehman, Assistant
Secretary of Commerce & Commissioner of Patents and Trademarks,
Patent and Trademark Office; David Stimson, President,
International Trademark Association; Michael K. Kirk, Executive
Director, American Intellectual Property Law Association;
Norman L. Balmer, President, Intellectual Property Owners and
Chief Patent Counsel of Union Carbide Corporation; Roger N.
Coe, Director, Patents and Licensing at Elkhart Site, Bayer
Corporation, on behalf of the Section of Intellectual Property
Law of the American Bar Association; Ronald J. Stern,
President, Patent Office Professional Association; and Robert
M. Tobias, National President, National Treasury Employees
Union.
U.S. Copyright Office
On July 23, 1998, the Subcommittee held an oversight
hearing on the administration and operation of the Copyright
Office of the United States. The Subcommittee received
testimony from the following witnesses: The Honorable Marybeth
Peters, Register of Copyrights, Copyright Office of the United
States, The Library of Congress; and Shira Perlmutter,
Associate Register for Policy and International Affairs,
Copyright Office of the United States, The Library of Congress;
accompanied by: David O. Carson, General Counsel, Copyright
Office of the United States, The Library of Congress; Marilyn
Kretsinger, Assistant General Counsel, Copyright Office of the
United States, The Library of Congress; and Louis Mortimer,
Chief Operating Office, Copyright Office of the United States,
The Library of Congress.
Celebrity Imposters/Federal Right of Publicity
On May 21, 1998, the Subcommittee held and oversight
hearing on ``celebrity imposters''; or the issue of
misappropriation of musical group ``personas'' and the
resulting effect on authentic or original band members. It
focused on a federal right of publicity and other legislative
proposals that would proscribe fraudulent performances by
individuals posing as celebrities or members of a celebrity
band.
The Subcommittee received testimony from the following
witnesses: Michael K. Kirk, Executive Director, American
Intellectual Property Law Association; Fred Mostert, President-
Elect, International Trademark Association; Garo A. Partoyan,
General Counsel for Marketing and Technology, Mars, Inc., on
behalf of the Intellectual Property Owners; Sam Moore, Member
of Musical Group Sam & Dave; and Joe Terry, Member of Musical
Group Danny & The Juniors.
State Commodity Commissions and Product Certification
On May 21, 1998, the Subcommittee held an oversight hearing
on Representative Crapo's proposal to amend the Lanham Act to
prevent the advertising of potatoes grown in Idaho as ``Idaho
Potatoes'' when they otherwise fail to meet those quality
standards imposed by that state's commodity commission.
The Subcommittee received testimony from the following
witnesses: The Honorable Michael Crapo, U.S. Representative,
2nd District of Idaho; Michael K. Kirk, Executive Director,
American Intellectual Property Law Association; Fred Mostert,
President-Elect, International Trademark Association; and Garo
A. Partoyan, General Counsel for Marketing and Technology,
Mars, Inc., on behalf of Intellectual Property Owners.
International Expropriation of Registered Marks
On May 21, 1998, the Subcommittee held an oversight hearing
on the issue of international expropriation of registered
marks. This issue was brought to the attention of the Congress
by the Bacardi Corporation. It acquired a Cuban rum company
along with its trademark, ``Havana Club'' from Cuban owners who
fled the country. The trademark was expropriated by a Cuban
state enterprise. Litigation as to who owns the trademark is
still pending. Barcardi wanted Congress to amend the Lanham Act
by specifying that the PTO could not refuse registration to an
otherwise valid trademark if the applicant demonstrates that
he/she or a predecessor in interest owned the mark after
January 1, 1959; that the mark, or a business property
associated with the mark, was expropriated without
compensation; and that the owner or his/her predecessor in
interest has not authorized another party to make exclusive use
of the mark. The Bacardi proposal would also compel the PTO to
deny registration, recordation, or recognition to a mark if an
opposer (the rightful owner) demonstrates these same
conditions.
The Subcommittee received testimony from the following
witnesses: Michael K. Kirk, Executive Director, American
Intellectual Property Law Association; Fred Mostert, President-
Elect, International Trademark Association; Garo A. Partoyan,
General Counsel for Marketing and Technology, Mars, Inc., and
Ignacio E. Sanchez, Kelly, Drye & Warren, LLP.
Patent Extension Review
On May 21, 1998, the Subcommittee held an oversight hearing
on the issue of the process involved in patent extension
review.
The Subcommittee received testimony from the following
witnesses: Peter B. Hutt, Partner, Covington & Burling; Gerald
F. Meyer, Former Acting Director and Deputy Director of the
Federal Drug Administration's Center for Drug Evaluation and
Research; and Bruce Downey, Chairman and Chief Executive
Officer, Barr Laboratories, Inc.
U.S. Judicial Conference, Administrative Office of the United States
Courts, and the Federal Judicial Center
On June 11, 1998, the Subcommittee held an oversight
hearing on the administration and operation of the Judicial
Conference of the United States, the Administrative Office of
the United States Courts and the Federal Judicial Center. The
Subcommittee received testimony from the following witnesses:
The Honorable Wm. Terrell Hodges, Chairman, Executive
Committee, Judicial Conference of the United States; Leonidas
Ralph Mecham, Director, Administrative Office of the United
States Courts; and the Honorable Rya W. Zobel, Director,
Federal Judicial Center.
Summary of Oversight Plan and Implementation
Pursuant to clause 2(d) of Rule X of the House, the
Committee on the Judiciary submitted, in February, 1997, an
oversight plan including matters to be referred to the
Subcommittee on Courts and Intellectual Property. Following is
a summary of the portions of that plan relating to the
Subcommittee and a summary of the Subcommittee's activities to
implement the oversight plan.
Article III Courts
In its oversight plan, the Subcommittee proposed to
continue to devote considerable time and resources to improving
the delivery of justice by Article III Federal courts through
its oversight responsibility for (1) the Administrative Office
of the U.S. Courts; (2) the Federal Judicial Center; (3) the
Judicial Conference of the United States; and (4) United States
Attorneys within the Department of Justice.
Subcommittee hearings and legislation focused on the needs
and recommendations of the Administrative Office of U.S. Courts
and the federal judiciary, recommended changes under the Rules
Enabling Act, judicial reform and discipline, existing and new
arbitration programs in U.S. District Courts, and prosecutorial
policies of U.S. Attorneys.
The U.S. Copyright System
The Subcommittee also proposed to continue to devote
considerable time to oversee the operation of the copyright
system in a world of ever changing technology, recognizing that
it is vital to the protection of our copyright industry that
the Subcommittee be vigilant in its exercise of its
jurisdiction to carry out its constitutional mandate to
``promote the progress of science and useful arts, by securing
for limited times to authors and inventors the exclusive right
to their respective writings and discoveries;'' (Art. I, Sec.
8, cl. 8).
Subcommittee hearings and legislation focused on the
operation of the U.S. Copyright Office, which is part of the
Library of Congress, greater protection for copyrighted
information that could be accessed by users of the internet,
the licensing of musical works by performance rights licensing
associations to bars, restaurants, and other venues, annual
losses of U.S. property to international piracy and a protocol
to the Berne Convention for the Protection of Literary and
Artistic Works.
The U.S. Patent and Trademark Systems
The Subcommittee proposed to exercise its oversight
responsibilities for the operation of the U.S. Patent and
Trademark Office.
Subcommittee hearings and legislation focused on government
corporation status for the USPTO, the cost to U.S. companies
and inventors of applying for and obtaining separate patents in
each of 150 or more countries, the fairness and status of
reexamination procedures for applicants, the implementation of
trademark treaties, and the effects of the new patent term.
SUBCOMMITTEE ON IMMIGRATION AND CLAIMS
LAMAR SMITH, Texas, Chairman
MELVIN L. WATT, North Carolina ELTON GALLEGLY, California
CHARLES E. SCHUMER, New York WILLIAM L. JENKINS, Tennessee
HOWARD L. BERMAN, California EDWARD A. PEASE, Indiana
ZOE LOFGREN, California CHRISTOPHER B. CANNON, Utah
ROBERT WEXLER, Florida ED BRYANT, Tennessee
SONNY BONO, California \1\
JAMES E. ROGAN, California \2\
MARY BONO, California \3\
----------
\1\ Sonny Bono, California, deceased January 5, 1998.
\2\ James E. Rogan, California, assigned March 3, 1998, to fill the
vacancy resulting from the death of Sonny Bono, California.
\3\ Mary Bono, California, assigned June 17, 1998.
Tabulation and disposition of bills referred to the Subcommittee
Legislation referred to the Subcommittee.......................... 159
Legislation reported favorably to the full Committee.............. 16
Legislation reported adversely to the full Committee.............. 0
Legislation reported without recommendation to the full Committee. 0
Legislation reported as original measure to the full Committee.... 0
Legislation discharged from the Subcommittee...................... 12
Legislation pending before the full Committee..................... 6
Legislation discharged from the Committee......................... 11
Legislation reported to the House................................. 12
Legislation pending in the House.................................. 0
Legislation passed by the House................................... 19
Legislation pending in the Senate................................. 6
Legislation included in the Appropriations bill................... 3
Legislation vetoed by the President (not overridden).............. 0
Legislation enacted into public law............................... 12
Legislation on which hearings were held........................... 18
Days of hearings (legislative and oversight)...................... 27
Private Bills:
Claims bills referred to Subcommittee......................... 34
Immigration bills referred to Subcommittee.................... 40
Bill on which hearings were held.............................. 0
Claims bills heard/reported favorably to the full Committee... 6
Immigration bills heard/reported favorably to the full
Committee................................................... 10
Claims bills ordered reported to the House.................... 6
Immigration bills ordered reported to the House............... 10
Claims bills which passed the House........................... 6
Immigration bills which passed the House...................... 9
Claims bills pending in the House............................. 0
Immigration bills pending in the House........................ 1
Claims bills pending in the Senate............................ 5
Immigration bills pending in the Senate....................... 0
Claims bills which became law................................. 1
Immigration bills which became law............................ 9
Jurisdiction of the Subcommittee
The Subcommittee on Immigration and Claims has legislative
and oversight jurisdiction over matters involving: immigration
and naturalization, admission of refugees, treaties,
conventions and international agreements, claims against the
United States, federal charters of incorporation, private
immigration and claims bills, and other appropriate matters as
referred by the Chairman of the Judiciary Committee.
Public Legislation Enacted Into Law
IMMIGRATION
S. 670--U.S. Citizenship for Children Born Abroad
On March 18, 1997, Representative Bill McCollum introduced
H.R. 1109 to eliminate the special transition rule for issuance
of a certificate of citizenship for certain children born
outside the United States.
On April 30, 1997, Senator Spencer Abraham introduced S.
670, a similar bill.
On May 8, 1997, the Senate Judiciary Committee ordered S.
670 favorably reported to the Senate.
On May 14, 1997, S. 670 passed the Senate by unanimous
consent.
On July 15, 1997, the House Subcommittee on Immigration and
Claims reported H.R. 1109 to the Judiciary Committee by voice
vote.
On July 23, 1997, the House Judiciary Committee ordered
H.R. 1109 reported to the House by voice vote.
On July 28, 1997, S. 670 was discharged from the House
Judiciary Committee. On the same day, the House passed H.R.
1109 by voice vote under suspension of the rules and laid it on
the table. The House then passed S. 670 by voice vote.
On August 8, 1997, the President signed S. 670 into law
(Public Law 105-38).
S. 1198, the Religious Workers Act of 1997
``Special immigrant'' visas (9,940 each year) are available
for a number of different categories of aliens. One such
category is religious worker. An alien (along with spouse and
children) can qualify for a special immigrant visa if the alien
has been a member for the immediately preceding 2 years of a
religious denomination having a bona fide nonprofit, religious
organization in the United States and seeks to enter the United
States to (1) serve as a minister, (2) serve in a professional
capacity in a religious vocation or occupation at the request
of the organization, or (3) serve in a religious vocation or
occupation at the request of the organization, and in each case
has been carrying out such work continuously for at least the
prior 2 years. The two non-minister categories are limited to
5,000 visas a year and were set to sunset on October 1, 1997.
S. 1198, the ``Religious Workers Act of 1997,'' extended the
sunset date to October 1, 2000.
In addition, S. 1198 allows the Secretary of State to waive
nonimmigrant visa fees for aliens coming to the United States
for charitable purposes involving health or nursing care, the
provision of food or housing, job training, or any other
similar direct service or assistance to poor or otherwise needy
individuals.
Finally, S. 1198 extended the deadline by which the
Attorney General had to reduce the number of documents
acceptable for new hires to prove identity and work eligibility
(as provided in section 412(a) of the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996 (Public Law
104-208)) from September 30, 1997, to March 30, 1998.
On September 5, 1997, Subcommittee on Immigration and
Claims Chairman Lamar Smith introduced H.R. 2412, extending the
sunset date for the non-minister religious worker special
immigrant visas, making certain changes to the program (and to
the nonimmigrant religious worker visa program), and extending
the visa waiver pilot program and the Attorney General's
deadline for reducing the number of acceptable documents for
new hires.
On September 8, 1997, the Subcommittee on Immigration and
Claims ordered H.R. 2412 reported by a voice vote.
On September 18, 1997, Senator Spencer Abraham introduced
S. 1198. On the same day, S. 1198 was passed by the Senate as
amended by unanimous consent.
On October 1, 1997, S. 1198 was passed by the House as
amended under suspension of the rules by voice vote. On the
same day, the Senate passed S. 1198 by unanimous consent as
amended by the House.
On October 6, 1997, the President signed S. 1198 into law
(Public Law 105-54).
H.R. 2464, Exempting Internationally Adopted Children 10 and Under from
the Immunization Requirement of the Immigration and Nationality
Act
Section 341 of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996, Public Law 104-208, requires that
immigrants, prior to lawful admission, have received
vaccinations against specified communicable diseases. H.R. 2464
waives this requirement for alien children 10 years of age and
under who are adopted by United States citizens if, prior to
the admission of the child, the sponsor has executed an
affidavit stating that within a specified time period the child
will receive appropriate vaccinations.
On September 11, 1997, Representative Bill McCollum
introduced H.R. 2464.
On September 15, 1997, the Subcommittee on Immigration and
Claims was discharged from further consideration of H.R. 2464.
On September 17, 1997, the Judiciary Committee ordered H.R.
2464 reported as amended by voice vote.
On October 1, 1997, the Judiciary Committee reported H.R.
2464 (H. Rept. 105-289).
On October 21, 1997, the House passed H.R. 2464 under
suspension of the rules by a vote of 420-0.
On November 4, 1997, the Senate passed H.R. 2464 by
unanimous consent.
On November 12, 1997, the President signed H.R. 2464 into
law (Public Law 105-73).
Nicaraguan Adjustment and Central American Relief Act of 1997
The Nicaraguan Adjustment and Central American Relief Act
of 1997 provides certain nationalities with the opportunity to
apply for relief from removal.
Section 202 of NACARA allows Nicaraguans and Cubans who
have been physically present in the United States continuously
since December 1, 1995, to apply for adjustment of status
before April 1, 2000. Once granted lawful permanent resident
status, their spouses, children and certain unmarried sons and
daughters may apply for adjustment of status.
Section 203 of NACARA amends the transition rules
established in section 309(c)(5) of the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996 (Public Law
104-208). Prior to IIRIRA, aliens were eligible for suspension
of deportation if they could establish continuous physical
presence in the United States for 7 years, good moral character
during the 7-year period, and extreme hardship to themselves or
an immediate family member who was a citizen or permanent legal
resident of the United States in the event the alien was
deported. Time accrued during deportation proceedings counted
toward the 7 years continuous physical presence. Since IIRIRA,
aliens have been eligible for ``cancellation of removal'' if
they establish continuous physical presence of 10 years, good
moral character during the period, and exceptional and
extremely unusual hardship to a citizen or lawfully resident
family member if the alien is deported. In addition, the 10-
year period must accrue before the alien receives a ``notice to
appear'' for removal proceedings.
Section 203(a) of NACARA exempts certain categories of
aliens from the new rules provided by section 309(c)(5) of
IIRIRA. They will be processed under the old suspension of
deportation standards. The exempted classes include the
following aliens (provided such aliens have not been convicted
of an aggravated felony as defined in section 101(a)(43) of the
Immigration and Nationality Act): (1) Salvadorans who entered
the United States on or before September 19, 1990, and who, on
or before October 31, 1991, either registered for benefits
under the settlement agreement in American Baptist Churches v.
Thornburgh, 760 F. Supp. 796 (N.D. Cal. 1991) or applied for
Temporary Protected Status under section 244A of the INA; (2)
Guatemalans who entered the United States on or before October
1, 1990, and registered for benefits under the ABC settlement
on or before December 31, 1991; (3) Salvadorans and Guatemalans
not included in the foregoing groups who applied for asylum on
or before April 1, 1990; (4) the spouses or children of aliens
described in the foregoing paragraphs at the time the alien's
application for relief is decided upon; (5) the adult,
unmarried sons or daughters of aliens described in the
foregoing paragraphs if the sons or daughters entered the
United States on or before October 1, 1990; and (6) nationals
of the Soviet Union (or any of its successor republics),
Latvia, Estonia, Lithuania, Poland, Czechoslovakia (or its
successor republics), Romania, Hungary, Bulgaria, Albania, East
Germany, or Yugoslavia (or its successor republics) who entered
the United States on or before December 31, 1990, and applied
for asylum on or before December 31, 1991.
On November 19, 1997, the President signed the ``District
of Columbia Appropriations Act of 1998'' into law (H.R. 2607,
Public Law 105-100). NACARA was enacted into law as title II of
the Act.
On November 13, 1997, the Senate passed S. 1565 by
unanimous consent, which made technical corrections to NACARA.
On the same day, the House passed S. 1565 by unanimous consent.
On December 2, 1997, the President signed S. 1565 into law
(Public Law 105-139).
Expanded War Crimes Act of 1997
The ``Expanded War Crimes Act of 1997'' expanded the number
of war crimes violation of which would subject the perpetrator
to federal criminal penalties. The ``War Crimes Act of 1996''
had been enacted into law (Public Law 104-192) to carry out the
obligation the United States incurred when it ratified the 1949
Geneva Conventions for the Protection of Victims of War to
provide criminal penalties for grave breaches of the
conventions. ``The Expanded War Crimes Act of 1997'' expanded
the number of punishable offenses to include violations of
certain articles of the Annex to the Hague Convention IV,
Respecting the Laws and Customs of War on Land, of common
Article 3 of the 1949 Geneva Conventions (or any protocol to
such conventions to which the United States is a party and
which deals with non-international armed conflict), or of
certain provisions of the Protocol on Prohibitions or
Restrictions on the Use of Mines, Booby-Traps and Other Devices
as amended at Geneva on 3 May 1996, when the United States is a
party to such Protocol.
On April 16, 1997, H.R. 1348, the ``Expanded War Crimes Act
of 1997,'' was introduced by Representative Walter Jones.
On July 15, 1997, the Subcommittee on Immigration and
Claims ordered H.R. 1348 reported by voice vote.
On July 23, 1997, the Judiciary Committee ordered H.R. 1348
favorably reported by a recorded vote of 17 to 4.
On July 25, 1997, the Judiciary Committee reported H.R.
1348 to the House (H. Rept. 105-204).
On July 29, 1997, the House passed H.R. 1348 under
suspension of the rules by a vote of 391-32.
H.R. 1348 was placed (as section 583 of title V) in H.R.
2159, the ``Foreign Operations, Export Financing, and Related
Programs Appropriations Act, 1998,'' which the President signed
into law on November 26, 1997 (Public Law 105-118).
Sunset of Section 245(i) of the Immigration and Nationality Act
Section 245(i) of the Immigration and Nationality Act was
adopted on a temporary basis by section 506(b) of the
Departments of Commerce, Justice, and State, the Judiciary, and
Related Agencies Appropriations Act of 1995 (Public Law 103-
317). The section allowed aliens who were eligible for an
immigrant visa but who were illegally present in the United
States to adjust their status in the United States to that of
lawful permanent residents upon payment of a penalty. In the
absence of section 245(i), such aliens must pursue their visa
applications at a U.S. embassy or consulate outside the United
States and are potentially subject to the 3- and 10-year bars
on admissibility instituted by section 301(b) of the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996
(Public Law 104-208). Section 245(i) was scheduled to sunset on
September 30, 1997.
On July 29, 1997, the Senate passed S. 1022, ``the
Departments of Commerce, Justice, and State, the Judiciary, and
Related Agencies Appropriations Act of 1998,'' which contained
a permanent extension of section 245(i).
On September 30, 1997, the House passed H.R. 2267, ``the
Departments of Commerce, Justice, and State, the Judiciary, and
Related Agencies Appropriations Act of 1998,'' which allowed
section 245(i) to expire.
On October 1, 1997, the President signed a continuing
resolution (H.J. Res. 94) into law that extended section 245(i)
until October 23.
On October 23, 1997, the President signed a continuing
resolution (H.J. Res. 97) into law that extended section 245(i)
until November 7.
On October 29, 1997, the House defeated by a vote of 153-
268 a motion to instruct conferees on the ``Departments of
Commerce, Justice, and State, the Judiciary, and Related
Agencies Appropriations Act of 1998'' to support the House
version of the bill allowing section 245(i) to expire.
On November 13, 1997, the House agrees to the conference
report to H.R. 2267 by a vote of 282-110. On the same day, the
Senate agreed to the conference report by unanimous consent.
Sections 111(a)-(b) of title I of the conference report
sunsetted section 245(i) as of January 14, 1998. However, the
provisions allow aliens who had applied for immigrant visas
before this date to be processed under section 245(i)
(regardless of the date of processing). Section 111(c) allows
aliens eligible to receive employment-based immigrant visas to
adjust status in the U.S. if they were lawfully admitted and
have not failed to maintain a lawful status, engaged in
unauthorized employment, or otherwise violated the terms and
conditions of their employment, for a period exceeding 180
days.
On November 26, 1997, the President signed the
``Departments of Commerce, Justice, and State, the Judiciary,
and Related Agencies Appropriations Act of 1998'' into law
(H.R. 2267, Public Law 105-119).
Fingerprints for Criminal Background Checks
On November 26, 1997, the President signed the
``Departments of Commerce, Justice, and State, the Judiciary,
and Related Agencies Appropriations Act of 1998'' into law
(H.R. 2267, Public Law 105-119). Title I of the Act provided
that none of the funds appropriated or otherwise made available
to the Immigration and Naturalization Service (in this or
subsequent fiscal years) could be used by it to accept, for the
purpose of conducting criminal background checks on applicants
for any immigration benefit (including naturalization), any FD-
258 fingerprint card which has been prepared by or received
from any entity other than an office of the INS, any state or
local law enforcement agency, any U.S. consular officers or
certain U.S. military offices. This provision was added because
of concern with the integrity of fingerprints taken by private
entities under INS' ``Designated Fingerprint Services''
program. (See Oversight Activities, Immigration--Safeguarding
the Integrity of the Naturalization Process.)
Criminal Background Checks for Naturalization Applications
On November 26, 1997, the President signed the
``Departments of Commerce, Justice, and State, the Judiciary,
and Related Agencies Appropriations Act of 1998'' into law
(H.R. 2267, Public Law 105-119). Title I of the Act provided
that none of the funds appropriated or otherwise made available
to the Immigration and Naturalization Service (in this or
subsequent fiscal years) could be used by it to complete
adjudication of applications for naturalization unless it has
received confirmation from the Federal Bureau of Investigation
that full criminal background checks have been completed. This
provision was added because of the wholesale breakdown during
INS' ``Citizenship USA'' program of the criminal background
check process for naturalization applicants. (See Oversight
Activities, Immigration--Improper Granting of U.S. Citizenship
Without Conducting Criminal Background Checks and Safeguarding
the Integrity of the Naturalization Process.)
Discipline of INS Employees
On November 26, 1997, the President signed the
``Departments of Commerce, Justice, and State, the Judiciary,
and Related Agencies Appropriations Act of 1998'' into law
(H.R. 2267, Public Law 105-119). Title I of the Act authorized
the Attorney General (in fiscal year 1998) to impose
disciplinary action, including termination of employment,
pursuant to policies and procedures applicable to employees of
the Federal Bureau of Investigation, for any employee of the
Immigration and Naturalization Service who violates policies
and procedures set forth by the Department of Justice relative
to the granting of citizenship or who willfully deceives the
Congress or department leadership on any matter. This provision
was added because of dissatisfaction with the disciplinary
process regarding INS employees who deceived a Congressional
task force delegation to the Miami District of the INS. (See
Oversight Activities, Immigration--Deception of a Congressional
Task Force Delegation to Miami District of INS (Krome).)
Philippine Army, Scouts, and Guerilla Veterans of World War II
Naturalization Act of 1997
On November 26, 1997, the President signed the
``Departments of Commerce, Justice, and State, the Judiciary,
and Related Agencies Appropriations Act of 1998'' into law
(H.R. 2267, Public Law 105-119). Section 112 of title I of the
Act waived certain naturalization requirements (regarding prior
residence in the U.S. or prior permanent residence status) for
individuals who applied for naturalization before February 3,
1995, and who served in the Philippine Army, a recognized
Philippines guerilla unit, or in the Philippine Scouts during
World War II.
Special Immigrant Status for Dependents on Juvenile Courts
On November 26, 1997, the President signed the
``Departments of Commerce, Justice, and State, the Judiciary,
and Related Agencies Appropriations Act of 1998'' into law
(H.R. 2267, Public Law 105-119). Section 113 of title I of the
Act modified the provision of the Immigration and Nationality
Act which provides special immigrant status to aliens who are
dependents on U.S. juvenile courts, who have been deemed
eligible by such courts for long-term foster care and for whom
it has been determined that it would not be their best
interests to be returned to their home countries. Under section
113, the placements in foster care must be because of abuse,
neglect, or abandonment, the Attorney General must expressly
consent to the dependency orders serving as preconditions to
the grants of special immigrant status, and no juvenile court
can determine the custody status or placement of aliens in the
actual or constructive custody of the Attorney General without
the consent of the Attorney General.
S. 1161--Authorization of Appropriations for Refugee Assistance
On September 10, 1997, Senator Spencer Abraham introduced
S. 1161 to authorize appropriations for refugee and entrant
assistance for fiscal years 1998 and 1999. The bill passed the
Senate by unanimous consent on the same date.
On October 1, 1997, the House failed to pass the bill under
suspension of the rules by a vote of 230-193.
On November 13, 1997, the House passed the bill under
suspension of the rules by unanimous consent.
On December 2, 1997, the President signed the bill into law
(Public Law 105-136).
H.R. 1493, to Require the Attorney General to Establish a Program in
Local Prisons to Identify, Prior to Arraignment, Criminal
Aliens and Aliens Who Are Unlawfully Present in the United
States
H.R. 1493 requires the Attorney General to detail
Immigration and Naturalization Service employees to selected
local governmental jails and prisons in order to identify,
prior to arraignment, deportable criminal aliens and aliens
unlawfully present in the United States (subject to such
amounts as are provided in appropriations acts). The facilities
would have to be located in areas that have a high
concentration of such aliens. For fiscal year 1999, not less
than 10 and not more than 25 areas can be determined to meet
this standard. For fiscal year 2000, not less than 25 and not
more than 50 can be so determined; for fiscal year 2001, not
more than 75; for fiscal year 2002, not more than 100; and for
fiscal year 2003 and subsequent fiscal years, 100 or such other
number as may be specified in appropriations acts. For any
fiscal year, not less than 20% of areas should be in states not
contiguous to a land border. In addition, certain facilities in
California shall be selected for participation.
On April 30, 1997, Representative Elton Gallegly introduced
H.R. 1493.
On May 13, 1997, the Subcommittee on Immigration and Claims
held a hearing on H.R. 1493. Testimony was received from
Representative Gallegly; Paul Virtue, Acting Executive
Associate Commissioner for Programs, Immigration and
Naturalization Service; Richard Bryce, Undersheriff, County of
Ventura, California; and Randy Gaston, Chief of Police,
Anaheim, California.
On July 24, 1997, the Subcommittee on Immigration and
Claims ordered H.R. 1493 favorably reported to the Judiciary
Committee, with an amendment in the nature of a substitute
(phasing in the program and making it subject to
appropriations), by voice vote.
On September 9, 1997, the Judiciary Committee ordered H.R.
1493 favorably reported by voice vote. An amendment by
Representative Chris Cannon, adding the interior states
provision, was adopted by voice vote. An amendment by
Representative Gallegly, providing that selected facilities
must be ones that incarcerate or process individuals prior to
their arraignment, was also adopted by voice vote.
On October 23, 1997, the Judiciary Committee reported H.R.
1493 to the House (H. Rept. 105-338).
On November 4, 1997, the House passed H.R. 1493 under
suspension of the rules by a vote of 410-2.
On November 13, 1997, the Senate passed H.R. 1493 by
unanimous consent.
On December 5, 1997, the President signed H.R. 1493 into
law (Public Law 105-141).
S. 1178, Extending the Visa Waiver Pilot Program
S. 1178 extends the visa waiver pilot program through April
30, 2000. Under the pilot program, tourists and business
visitors from certain countries can enter the United States for
up to 90 days without first obtaining a visa. Before enactment
of S. 1178, one of the conditions a country had to meet to be
eligible for the pilot program was that for the preceding 2-
year period, the average refusal rate for its nationals seeking
temporary visitor visas to enter the United States had to be
less than 2 percent, and the refusal rate for both years had to
be less than 2\1/2\ percent. S. 1178 provides that a country
can be eligible for the pilot program if the refusal rate
during the previous full fiscal year was less than 3 percent.
In addition, S. 1178 requires the Attorney General to implement
a program to collect data regarding the total number of aliens
whose authorized period of stay in the United States
terminates, but who remain in the United States notwithstanding
such termination.
On September 15, 1997, Senator Spencer Abraham introduced
S. 1178.
On September 26, 1997, S. 1178 was passed by the Senate, as
amended, by unanimous consent.
On September 30, 1997, House Subcommittee on Immigration
and Claims Chairman Lamar Smith introduced H.R. 2578. The bill
would not have modified the refusal rate eligibility test as it
existed and would have extended the visa waiver pilot program
to September 30, 1999.
On October 1, 1997, the House Subcommittee on Immigration
and Claims was discharged from consideration of H.R. 2578. On
October 7, 1997, the House Judiciary Committee ordered H.R.
2578 favorably reported by voice vote. An amendment by
Representative Barney Frank, which would have modified the
refusal rate eligibility test, was defeated by a vote of 10-16.
On November 7, 1997, the House Judiciary Committee reported
H.R. 2578 to the House (H. Rept. 105-387).
On March 25, 1998, the House passed Rules Committee
resolution H. Res. 391 by a voice vote. On the same day, the
House called up S. 1178 in lieu of H.R. 2578 and without
objection struck all after the enacting clause and inserted in
lieu thereof the provisions of H.R. 2578. The House then passed
S. 1178 by a vote of 407-0. The House had earlier agreed to an
amendment by Representative Richard Pombo by a vote of 360-46
to modify the refusal rate eligibility test. The House also had
agreed to an amendment by Lamar Smith, as modified, by a voice
vote to extend the visa waiver pilot program to April 30, 2000.
On April 1, 1998, the Senate agreed to the House amendments
to S. 1178 by unanimous consent.
On April 27, 1998, the President signed S. 1178 into law
(Public Law 105-173).
H.R. 4658, Extending the Deadline for Implementation of an Automated
Entry-Exit Control System under Section 110 of the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996
H.R. 4658 extended the deadline for implementation of the
automated entry-exit system required by section 110 of the
Illegal Immigration Reform and Immigrant Responsibility Act of
1996, Public Law 104-208, at land and sea points of entry from
October 1, 1998 to October 15, 1998.
On October 1, 1998, Subcommittee on Immigration and Claims
Chairman Lamar Smith introduced H.R. 4658. On the same day, the
Judiciary Committee was discharged from consideration of the
bill and the House passed it by voice vote.
On October 8, 1998, the Senate passed H.R. 4658 by
unanimous consent.
On October 15, 1998, the President signed H.R. 4658 into
law (Public Law 105-259).
Amendment to Section 110 of the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 Regarding Implementation
of an Automated Entry-Exit Control System
This provision extended from September 30, 1998, until
March 30, 2001, the deadline for implementation of the
automated entry-exit control system at land and sea points of
entry required by section 110 of the Illegal Immigration Reform
and Immigrant Responsibility Act of 1996, Public Law 104-208.
It also required that the control system implemented not
significantly disrupt trade, tourism, or other legitimate
cross-border traffic at land border points of entry.
This modification was made by section 116 of the general
provisions (Department of Justice) of the ``Departments of
Commerce, Justice, and State, the Judiciary, and Related
Agencies Appropriations Act, 1999,'' contained in H.R. 4328,
``Making Omnibus Consolidated and Emergency Supplemental
Appropriations for Fiscal Year 1999'' (Public Law 105-277),
which the President signed into law on October 21, 1998.
The American Competitiveness and Workforce Improvement Act of 1998
Background
The H-1B Visa Program Prior to the American Competitiveness and
Workforce Improvement Act of 1998
``H-1B'' visas were available for workers coming
temporarily to the United States to perform services in
specialty occupations. Such occupations were ones that required
``(A) theoretical and practical application of a body of highly
specialized knowledge, and (B) attainment of a bachelor's or
higher degree in the specific speciality (or its equivalent) as
a minimum for entry into the occupation in the United States.''
The total number of aliens who could be issued visas or
otherwise provided nonimmigrant status as H-1B workers during
any fiscal year could not exceed 65,000. The period of
authorized admission was up to 6 years. In fiscal year 1997,
the 65,000 cap was reached for the first time on September 1.
In fiscal year 1998, the cap was reached on May 11.
The H-1B program's mechanism for protecting American
workers was not based on a lengthy pre-arrival review of the
availability of suitable American workers. Instead, an employer
filed a ``labor condition application'' making certain basic
attestations (promises) and the Secretary of Labor then
investigated complaints alleging noncompliance.
There were four attestations:
(1) The employer will pay H-1B aliens wages that are
the higher of the actual wage level paid by the
employer to all other individuals with similar
experience and qualifications for the specific
employment in question or the prevailing wage level for
the occupational classification in the area of
employment, and the employer will provide working
conditions for H-1B aliens that will not adversely
affect those of workers similarly employed.
(2) There is no strike or lockout in the course of a
labor dispute in the occupational classification at the
place of employment.
(3) At the time of the filing of the application, the
employer has provided notice of the filing to the
bargaining representative of the employer's employees
in the occupational classification and area for which
the H-1B aliens are sought, or if there is no such
bargaining representative, the employer has posted
notice in conspicuous locations at the place of
employment.
(4) The application will contain a specification of
the number of aliens sought, the occupational
classification in which the aliens will be employed,
and the wage rate and conditions under which they will
be employed.
Departmental investigations as to whether an employer had
failed to fulfill its attestations or had misrepresented
material facts in its application were triggered by complaints
filed by aggrieved persons or organizations. Investigations
could be conducted where there was reasonable cause to believe
that a violation had occurred.
An employer was subject to penalties for failing to fulfill
the attestations--for willfully failing to pay the required
wage, for there being a strike or lockout, for substantially
failing to provide notice or provide all required information
in an application--and for making a misrepresentation of
material fact in an application. Penalties included
administrative remedies (including civil monetary penalties not
to exceed $1,000 per violation) that the Secretary of Labor
determined to be appropriate and a bar for at least 1 year on
the Attorney General's ability to approve petitions filed by
the employer for alien workers (both immigrant and
nonimmigrant). In addition, the Secretary of Labor had to order
an employer to provide H-1B nonimmigrants with back pay where
wages were not paid at the required level, regardless of
whether other penalties were imposed.
Labor Department Concerns
In 1995, then Secretary of Labor Robert Reich stated
that:
Our experience with the practical operation of the H-
1B program has raised serious concerns . . . that what
was conceived as a means to meet temporary business
needs for unique, highly skilled professionals from
abroad is, in fact, being used by some employers to
bring in relatively large numbers of foreign workers
who may well be displacing U.S. workers and eroding
employers' commitment to the domestic workforce. Some
employers . . . seek the admission of scores, even
hundreds of [H-1B aliens], especially for work in
relatively low-level computer-related and health care
occupations. These employers include ``job
contractors,'' some of which have a workforce composed
predominantly or even entirely of H-1B workers, which
then lease these employees to other U.S. companies or
use them to provide services previously provided by
laid off U.S. workers.
The State of the Labor Market for Information
Technology Workers
There is a widespread belief that the United States is
facing a severe shortage of workers who are qualified to
perform skilled information technology jobs. This belief has
been fostered, in part, by a number of studies designed to
document a shortage of information technology workers,
including Help Wanted: The IT Workforce Gap at the Dawn of a
New Century (by the Information Technology Association of
America), America's New Deficit: The Shortage of Information
Technology Workers (by the U.S. Commerce Department), and Help
Wanted 1998: A Call for Collaborative Action for the New
Millennium (by ITAA). These studies estimate that there are up
to 346,000 vacancies in information technology professions.
However, in March of 1998, the U.S. General Accounting Office
issued a report criticizing the methodology of Help Wanted and
America's New Deficit. GAO found that Commerce's study had
``serious analytical and methodological weaknesses that
undermine the credibility of its conclusions that a shortage of
[information technology] workers exists.''
It is possible that there currently exists a significant
shortage of information technology workers. The evidence for
such a shortage is inconclusive. However, because the success
of our economy is so indebted to advances in computer
technology, the industry should be given the benefit of the
doubt. Claims that there is a shortage and that it can only be
alleviated through an increase of foreign workers through the
H-1B program should be accepted.
The Act
The American Competitiveness and Workforce Improvement Act
of 1998 modifies the H-1B visa quota as follows: 1999--115,000,
2000--115,000, 2001--107,500, 2002 and following years--65,000.
The employers most prone to abusing the H-1B program are
called ``job contractors'' or ``job shops.'' Much, or all, of
their workforces are composed of foreign workers on H-1B visas.
Many of these companies make no pretense of looking for
American workers and are in business to contract their H-1Bs
out to other companies. The companies to which the H-1Bs are
contracted benefit in that the wages paid to the foreign
workers are often well below what comparable Americans would
receive. Also, the companies don't have to shoulder the
obligations of being the legally recognized employers--the job
contractors/shops remain the official employers.
Under the Act, two new attestations--the no-lay off/non-
displacement and recruitment attestations--will apply
principally to job contractors/shops, defined in the bill (for
larger companies) as those employers 15% or more of whose
workforces are composed of H-1B workers. These businesses,
designated as ``H-1B-dependent,'' will be subject to the
attestations in those instances where they petition for H-1Bs
without masters degrees in high technology fields or where they
plan to pay the H-1Bs less than $60,000 a year. Thus, the
attestations are being targeted to hit the companies most
likely to abuse the system--job contractors/shops who are
seeking aliens without extraordinary talents (only bachelors
degrees) or offering relatively low wages (below $60,000).
Other employers, who use a relatively small number of H-1Bs,
will not have to comply with the new attestations unless they
have been found to have willfully violated the rules of the H-
1B program.
The no-lay off attestation prohibits an employer from
laying off an American worker from a job that is essentially
the equivalent of the job for which an H-1B alien is sought
during the period beginning 90 days before and ending 90 days
after the employer files a visa petition for the alien. The
recruitment attestation requires an employer to have taken good
faith steps to recruit American workers (using industry-wide
recruitment standards) for the job an H-1B alien will perform
and to offer the job to an American worker who applies and is
equally or better qualified than the alien. The attestations
sunset after 2001.
The Labor Department will enforce all aspects of the
program except in instances where an American worker claims
that a job should have been offered to him or her instead of an
H-1B alien. In such cases, an arbitrator appointed by the
Federal Mediation and Conciliation Service will decide the
issue.
The Labor Department will be able to investigate an
employer using the H-1B program without having received a
complaint from an aggrieved party in certain circumstances
where it receives specific and credible information that
provides reasonable cause to believe that the employer has
committed a willful failure to meet conditions of the H-1B
program, has shown a pattern or practice of failing to meet the
conditions, or has substantially failed to meet the conditions
that affects multiple employees.
An employer must offer an H-1B alien benefits and
eligibility for benefits on the same basis, and in accordance
with the same criteria, as the employer offers to American
workers.
Potential penalties include back pay, civil monetary
penalties of $1,000 per violation ($5,000 per willful
violation, and $35,000 per violation where a willful violation
was committed along with the improper layoff of an American
worker), and debarment from the H-1B program for from 1 to 3
years.
A $500 fee per alien will be charged to all employers
except universities and certain other institutions. The funds
will go for scholarship assistance for students studying
mathematics, computer science, or engineering, for federal job
training services, and for administrative and enforcement
expenses. The fee will sunset after 2001.
Procedural History
On February 25, 1998, the Immigration Subcommittee of the
Senate Judiciary Committee held a hearing on the H-1B visa
program.
On March 6, 1998, Senator Spencer Abraham introduced S.
1723, the ``American Competitiveness Act.''
On April 2, 1998, the Senate Judiciary Committee ordered S.
1723 favorably reported with an amendment in the nature of a
substitute.
On April 21, 1998, the House Subcommittee on Immigration
and Claims held a hearing, part of which was in regard to the
H-1B visa program (See Oversight Hearings--Immigration).
On April 28, 1998, House Subcommittee on Immigration and
Claims Chairman Lamar Smith introduced H.R. 3736, the
``Workforce Improvement and Protection Act of 1998.'' The bill
would have increased the H-1B quota to 95,000 in 1998, 105,000
in 1999, and 115,000 in 2000. It would have applied the two new
attestations to all employers and contained no fee provision.
On April 30, 1998, the House Subcommittee on Immigration
and Claims ordered H.R. 3736 reported to the House Judiciary
Committee by voice vote.
On May 11, 1998, the Senate Judiciary Committee reported S.
1723 to the Senate (S. Rept. 105-186).
On May 18, 1998, the Senate passed S. 1723, as amended, by
a vote of 78-20.
On May 20, 1998, the House Judiciary Committee ordered H.R.
3736 favorably reported to the House by a vote of 23-4. Eleven
amendments were adopted by voice vote. An amendment by
Representative James Rogan striking the no-lay off attestation
and the recruitment attestation was defeated by a vote of 7-24.
On July 29, 1998, the House Judiciary Committee reported
H.R. 3736 to the House (H. Rept. 105-657).
On September 24, 1998, the House passed the House Rules
Committee resolution (H. Res. 513), as amended, by voice vote.
Under the rule, the base text represented a compromise worked
out by Senator Abraham and Representative Smith and the
Administration that was similar to what was eventually enacted
into law as the American Competitiveness and Workforce
Improvement Act of 1998. On the same day, the House passed H.R.
3736 by a vote of 288-133. An amendment by Representative
Melvin Watt was defeated by a vote of 177-242. The amendment
embodied the Judiciary Committee-reported bill with the
addition of a fee on employers.
The American Competitiveness and Workforce Improvement Act
of 1998 was contained in title IV of Division C of H.R. 4328,
``Making Omnibus Consolidated and Emergency Supplemental
Appropriations for Fiscal Year 1999'' (Public Law 105-277),
which the President signed into law on October 21, 1998. The
Act was slightly modified from the form that passed the House
in order to fully reflect the terms of the compromise worked
out between Congress and the Administration.
NATO Special Immigrant Amendments
The Immigration and Nationality Act makes available 9,940
immigrant visas a year for ``special immigrants,'' a category
that includes many different types of aliens. One group in this
category is composed of retired long-time officers or employees
in the United States of certain international organizations
(and certain spouses and unmarried sons and daughters of the
retired officers/employees, certain unmarried sons and
daughters of present officers/employees and certain surviving
spouses of deceased officers/employees). The NATO Special
Immigrant Amendments makes civilian employees of the North
Atlantic Treaty Organization and their immediate family members
eligible for special immigrant visas on the same terms as these
individuals.
On January 9, 1997, Representative Owen Pickett introduced
H.R. 429, the ``NATO Special Immigrant Amendments of 1997.''
On May 13, 1997, the Subcommittee on Immigration and Claims
held a hearing on H.R. 429. Testimony was received from
Representative Owen Pickett; Paul Virtue, Acting Executive
Commissioner for Programs, U.S. Immigration and Naturalization
Service; and Colin Wright, NATO Civilian Coalition.
On October 6, 1997, the Subcommittee on Immigration and
Claims ordered H.R. 429 reported to the Judiciary Committee by
voice vote.
On October 29, 1997, the Judiciary Committee ordered H.R.
429 favorably reported to the House by voice vote.
On February 3, 1998, the Judiciary Committee reported H.R.
429 (H. Rept. 105-410).
On February 24, 1998, the House passed H.R. 429, as
amended, under suspension of the rules by voice vote.
On September 24, 1998, H.R. 429 was included as part of
H.R. 3736 as passed by the House.
H.R. 429 was included as section 421 of subtitle B of title
IV of Division C of H.R. 4328, ``Making Omnibus Consolidated
and Emergency Supplemental Appropriations for Fiscal Year
1999'' (Public Law 105-277), which the President signed into
law on October 21, 1998.
Haitian Refugee Immigration Fairness Act of 1998
The Haitian Refugee Immigration Fairness Act of 1998 allows
certain Haitians to apply for adjustment of status by April 1,
2000. Haitians present in the United States on December 31,
1995, who: (1) filed for asylum on or before December 31, 1995;
(2) were paroled into the U.S. on or before December 31, 1995,
after being identified as having a credible fear of persecution
or for emergent reasons or reasons deemed strictly in the
public interest; or (3) were children and who (a) arrived in
U.S. without parents and have remained without parents while in
the U.S., (b) became orphaned subsequent to arrival in the
U.S., or (c) were abandoned by parents or guardians prior to
April 1, 1998, and have remained abandoned. Once the principal
applicant is granted lawful permanent resident status, his or
her spouse, child or certain unmarried sons or daughters may
apply for adjustment of status as well. The Immigration and
Naturalization Service estimates that approximately 49,700
Haitians will be granted relief under this provision.
The Haitian Refugee Immigration Fairness Act of 1998 is
identical to S. 1504, introduced by Senator Bob Graham on
November 9, 1997, and reported to the Senate by the Committee
on the Judiciary with an amendment in the nature of a
substitute on April 23, 1998. S. 1504 was included in the
Senate-passed version of H.R. 4104, the fiscal year 1999
appropriations bill for the Treasury Department, Postal
Service, and other entities.
The Haitian Refugee Immigration Fairness Act of 1998 was
enacted into law as title IX of the ``Treasury and General
Government Appropriations, 1999,'' contained in H.R. 4328,
``Making Omnibus Consolidated and Emergency Supplemental
Appropriations for Fiscal Year 1999'' (Public Law 105-277),
which the President signed into law on October 21, 1998.
Modification of Border Crossing Card Program
To remedy the problem of old, unreliable, and counterfeit
border crossing cards (used by frequent short-term visitors
from Mexico), the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996, Public Law 104-208, mandated the
issuance of new border crossing cards containing a machine
readable biometric identifier (i.e. a fingerprint). The 1996
Act stated that the old, non-biometric border crossing cards
would no longer be valid after September 30, 1999. In 1998, the
State Department began accepting applications for the new
border crossing cards, called ``Laser Visas,'' at its
consulates in Mexico. The State Department also began charging
a fee of $45 per application.
Section 410 of the general provisions of title IV of the
``Departments of Commerce, Justice, and State, the Judiciary,
and Related Agencies Appropriations Act, 1999,'' contained in
H.R. 4328, ``Making Omnibus Consolidated and Emergency
Supplemental Appropriations for Fiscal Year 1999'' (Public Law
105-277), which the President signed into law on October 21,
1998, modifies three aspects of the border crossing card
program: (1) extends the statutory deadline from September 30,
1999 to September 30, 2001; (2) reduces the application fee
from $45 to $13 for Mexican children under 15 who have at least
one parent possessing or applying for a Laser Visa; and (3)
requires the State Department to accept Laser Visa applications
in the following Mexican border towns: Nogales, Nuevo Laredo,
Ciudad Acuna, Piedras Negras, Agua Prieta, and Reynosa.
Investor Visas
Almost 10,000 ``employment creation'' immigrant visas a
year are available for individuals who will invest specified
amounts of money to start new businesses that will create jobs
in the United States. There have been allegations that some
aliens have used the program to obtain U.S. citizenship without
making the necessary contributions that Congress intended.
Title I of the ``Departments of Commerce, Justice, and State,
the Judiciary, and Related Agencies Appropriations Act, 1999,''
contained in H.R. 4328, ``Making Omnibus Consolidated and
Emergency Supplemental Appropriations for Fiscal Year 1999''
(Public Law 105-277), which the President signed into law on
October 21, 1998, requires the Immigration and Naturalization
Service to report within 90 days on any legislative remedies
needed by INS to provide it with the tools to ensure that
aliens taking advantage of this program actually make, and are
personally liable for, the required investments and are
sufficiently involved in the management of the businesses.
Injury and Death-Related Benefits for Immigration Officers
Section 109(b) of the general provisions (Department of
Justice) of title I of the ``Departments of Commerce, Justice,
and State, the Judiciary, and Related Agencies Appropriations
Act, 1999,'' contained in H.R. 4328, ``Making Omnibus
Consolidated and Emergency Supplemental Appropriations for
Fiscal Year 1999'' (Public Law 105-277), which the President
signed into law on October 21, 1998, grants Immigration and
Naturalization Service officers the same injury and death-
related benefits as those already possessed by agents of the
Federal Bureau of Investigation and the Drug Enforcement
Agency.
Exemption of Inspection Fees for Cruise Ship Passengers
Section 114 of the general provisions (Department of
Justice) of title I of the ``Departments of Commerce, Justice,
and State, the Judiciary, and Related Agencies Appropriations
Act, 1999,'' contained in H.R. 4328, ``Making Omnibus
Consolidated and Emergency Supplemental Appropriations for
Fiscal Year 1999'' (Public Law 105-277), which the President
signed into law on October 21, 1998, expands the exemption from
inspection fees for cruise ship passengers to include ships
originating from a State that go into international waters or
ports.
Exemption of Certain Iraqi Asylees from Adjustment Cap
Section 128 of the general provisions (Department of
Justice) of title I of the ``Departments of Commerce, Justice,
and State, the Judiciary, and Related Agencies Appropriations
Act, 1999,'' contained in H.R. 4328, ``Making Omnibus
Consolidated and Emergency Supplemental Appropriations for
Fiscal Year 1999'' (Public Law 105-277), which the President
signed into law on October 21, 1998, exempts Iraqi asylees
airlifted to Guam in 1996 and 1997 from the statutory 10,000-
per-year cap on adjustments to permanent resident status.
Denial of Visas to Haitians Involved in Certain Killings
Section 616 of title VI of the ``Departments of Commerce,
Justice, and State, the Judiciary, and Related Agencies
Appropriations Act, 1999,'' contained in H.R. 4328, ``Making
Omnibus Consolidated and Emergency Supplemental Appropriations
for Fiscal Year 1999'' (Public Law 105-277), which the
President signed into law on October 21, 1998, forbids the use
of appropriated funds in the Act to grant visas to Haitians
involved in extrajudicial and political killings in Haiti.
Sense of Congress Regarding U.S. Residence Obtained by El Salvadoran
Killers
Section 595 of title V of the ``District of Columbia
Appropriations Act, 1999,'' contained in H.R. 4328, ``Making
Omnibus Consolidated and Emergency Supplemental Appropriations
for Fiscal Year 1999'' (Public Law 105-277), which the
President signed into law on October 21, 1998, regards El
Salvadorans who were involved in the 1980 murders of four
American churchwomen and later granted permanent residence in
the United States. It is the sense of Congress that, among
other things, information relevant to the murders should be
made public to the fullest extent possible and that the
Attorney General should review the circumstances under which
those involved in the murders or the subsequent cover-up
obtained residence in the United States and submit a report to
Congress by January 1, 1999.
Consular Authorities of the Department of State
Chapter 2 of title XXII of the ``Departments of Commerce,
Justice, and State, the Judiciary, and Related Agencies
Appropriations Act, 1999,'' contained in H.R. 4328, ``Making
Omnibus Consolidated and Emergency Supplemental Appropriations
for Fiscal Year 1999'' (Public Law 105-277), which the
President signed into law on October 21, 1998, makes a number
of changes to the law regarding consular officers. In addition,
it allows consular officers to deny visas to aliens responsible
for confiscating or expropriating property owned by U.S.
nationals and makes inadmissible aliens who have assisted
international child abductors (and certain relatives).
Refugees and Migration
Chapter 3 of title XXII of the ``Departments of Commerce,
Justice, and State, the Judiciary, and Related Agencies
Appropriations Act, 1999,'' contained in H.R. 4328, ``Making
Omnibus Consolidated and Emergency Supplemental Appropriations
for Fiscal Year 1999'' (Public Law 105-277), which the
President signed into law on October 21, 1998: (1) forbids the
use of funds appropriated by the Act to effect the involuntary
return of aliens to countries where they have a well-founded
fear of persecution, except as permitted by international
refugee law, (2) requires the promulgation of regulations
within 120 days to implement (with certain exceptions) the
United Nations Convention against Torture and Other Forms of
Cruel, Inhuman or Degrading Treatment or Punishment, which
forbids the involuntary return of aliens to countries where
there are substantial grounds to believe that they may be
tortured; (3) provides that (for fiscal year 1999) adult
unmarried children of Vietnamese reeducation camp internees are
eligible for refugee status under the Orderly Departure Program
for Vietnamese refugees (On November 13, 1997, Representative
Christopher Smith introduced H.R. 3037, containing similar
language. On the same date, the House passed the bill by voice
vote under suspension of the rules.); and (4) requires
semiannual reports from the State Department to Congress on the
Cuban government's compliance (or lack thereof) with its treaty
obligations regarding the treatment of migrants who have been
returned to Cuba.
Limitation on Funding for Regulations Regarding State Driver's License
Integrity
Section 656(b) of the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996, Public Law 104-208, sets
forth a process for the establishment of future standards for
driver's licenses and other state-issued identity documents
that will be acceptable to the federal government for
identification purposes. This provision was designed to combat
the fraudulent use of these documents by illegal aliens. The
National Highway Transportation Safety Agency was charged with
developing regulations to implement three requirements: (1) the
application process must include presentation of acceptable
evidence of identity; (2) the license must contain security
features designated to limit tampering and counterfeiting; and
(3) the social security number of the bearer must be displayed
visually or electronically on the document or it must be
verified at the time of application.
NHTSA published interim regulations implementing section
656(b) on June 17, 1998. Language prohibiting NHTSA's use of
appropriated funds to implement a final rule during fiscal year
1999 was included in section 362 of title III of the
``Department of Transportation and Related Agencies
Appropriations Act, 1999,'' contained in H.R. 4328, ``Making
Omnibus Consolidated and Emergency Supplemental Appropriations
for Fiscal Year 1999'' (Public Law 105-277), which the
President signed into law on October 21, 1998.
H.R. 2431, Freedom from Religious Persecution Act
The immigration-related provisions of H.R. 2431 deny visas
to aliens who have committed acts of religious persecution,
require guidelines ensuring fair treatment of asylum and
refugee claims based on religious persecution, require training
on religious persecution for immigration officers, immigration
judges, and foreign service officers, and require studies and
reports on the effects of expedited removal procedures on
asylum claims.
On September 8, 1997, Representative Frank Wolf introduced
H.R. 2431, the ``Freedom from Religious Persecution Act of
1997.'' The bill as introduced contained provisions making it
easier for aliens claiming religious persecution to obtain
asylum or refugee status, requiring training on religious
persecution for immigration officers, requiring the Attorney
General to submit annual reports on religious persecution
claims, requiring a period of public comment and review on
annual refugee admissions, and denying entry visas to aliens
who committed acts of religious persecution.
On March 24, 1998, the Subcommittee on Immigration and
Claims held a hearing on H.R. 2431. Testimony was received from
Paul Virtue, General Counsel, Immigration and Naturalization
Service; Alan Kreczko, Principal Deputy Assistant Secretary,
Bureau of Population, Refugees, and Migration, U.S. Department
of State; Nancy Sambaiew, Deputy Assistant Secretary for Visa
Services, Bureau of Consular Affairs, U.S. Department of State;
Mark Krikorian, Executive Director, Center for Immigration
Studies; James Robb, Evangelicals for Immigration Reform; and
Mark Franken, Executive Director, U.S. Catholic Conference
Migration and Refugee Services
On April 30, 1998, the Subcommittee on Immigration and
Claims by voice vote struck all the immigration-related
provisions from H.R. 2431 and reported the bill to the
Judiciary Committee.
On May 6, 1998, the Judiciary Committee conducted a markup
of H.R. 2431 at which Subcommittee on Immigration and Claims
Chairman Lamar Smith introduced an amendment in the nature of a
substitute that differed from the original bill in that it
removed provisions granting asylum preferences to aliens
claiming religious persecution, and added provisions requiring
training on religious persecution for immigration judges,
implementation of guidelines to ensure fair treatment of asylum
and refugee claims based on religious persecution, and the
conduct of studies and submission of reports on the effects of
expedited removal procedures on asylum claims. The Committee
ordered H.R. 2431 favorably reported by voice vote to the
House.
On May 8, 1998, the Judiciary Committee reported H.R. 2431
to the House (H. Rept. 105-480, part III).
On May 14, 1998, the House passed H.R. 2431 by a vote of
375-41 with one ``present.''
On October 9, 1998, the Senate passed an amended version of
H.R. 2431 by a vote of 98-0. The Senate version contained the
immigration-related language to be enacted into law.
On October 10, 1998, the House passed the Senate version of
H.R. 2431 under suspension of the rules by voice vote.
On October 27, 1998, the President signed H.R. 2431 into
law (Public Law 105-292).
H.R. 4293, the Irish Peace Process Cultural and Training Program Act
H.R. 4293 creates a new work-authorized cultural exchange
visa. The bill allows the issuance of 4,000 visas per year for
3 successive years, with visa duration of 3 years and no
waivers of inadmissibility, to aliens age 35 or younger from
Northern Ireland and the border counties of the Republic of
Ireland in order to provide such individuals with the
experience of living and working in a multicultural society
while obtaining valuable work skills.
On July 21, 1998, Representative James T. Walsh introduced
H.R. 4293. The bill as introduced established a 60-month
duration for the new visas, contained no limit on visa
issuance, and waived certain grounds of inadmissibility.
On October 7, 1998, the House suspended the rules and
passed H.R. 4293 (as amended to its final version) by voice
vote.
On October 8, 1998, the Senate passed the House-passed
version of H.R. 4293 by unanimous consent.
On October 30, 1998, the President signed H.R. 4293 into
law (Public Law 105-319).
H.R. 4821, Extending into Fiscal Year 1999 the Visa Processing Period
for Diversity Applicants Whose Visa Processing Was Suspended
Due to Embassy Bombings
H.R. 4821 extends into fiscal year 1999 the visa processing
period for diversity visa applicants whose visa processing was
suspended during fiscal year 1998 due to the bombing of two
United States embassies. The annual diversity visa lottery
provides applicants from countries that are under-represented
in other legal immigration programs with the opportunity to
apply for immigrant visas. Applicants selected in the annual
diversity visa lottery must complete their applications and be
issued a visa by the end of the fiscal year for which they are
selected--otherwise, their applications expire. Through no
fault of their own, hundreds of diversity visa applicants who
had been selected in the lottery lost the opportunity to
complete their applications and obtain a visa because of
disruption to their cases at the United States Embassies at
Nairobi, Kenya, and Dar Es Salaam, Tanzania, which were
destroyed by terrorist bombings on August 7, 1998, and at the
United States Embassy at Tirana, Albania, which was closed in
response to terrorists threats related to the August 7
bombings. H.R. 4821 allows these applicants to complete their
applications during fiscal year 1999. It makes no changes in
the requirements for diversity visas and did not guarantee the
affected applicants a visa. The visa numbers used by the
affected applicants will be charged to the regular diversity
visas allocation for fiscal year 1999.
On October 13, 1998, Subcommittee on Immigration and Claims
Chairman Lamar Smith introduced H.R. 4821.
On October 15, 1998, the House passed H.R. 4821 under
suspension of the rules by a voice vote.
On October 21,1998, the Senate passed H.R. 4821 by
unanimous consent.
On November 10, 1998, the President signed H.R. 4821 into
law (Public Law 105-360).
CLAIMS
H.R. 1023, the Ricky Ray Hemophilia Relief Fund Act of 1998
H.R. 1023 provides compassionate payments to individuals
with blood-clotting disorders, such as hemophilia, who
contracted human immunodeficiency virus (HIV) due to the
contaminated blood product anti-hemophilic factor. The Act
establishes a $750 million ``Ricky Ray Hemophilia Relief
Fund,'' which will fund the payments. Each eligible individual
will receive a $100,000 payment. The following persons will be
eligible for this payment: (1) an individual with a blood-
clotting disorder who used anti-hemophilic factor at any time
between July 1, 1982, and December 31, 1987; (2) a lawful
spouse or former lawful spouse during the stated time period;
or (3) an individual who acquired HIV from the mother during
pregnancy. In the case of a deceased individual, payment will
be made to the surviving spouse, children, or parents, in that
order. If the individual is not survived by any of these
individuals the payment will revert back to the fund.
On March 11, 1997, Representative Porter Goss introduced
H.R. 1023.
On October 24, 1997, the Subcommittee on Immigration and
Claims was discharged from consideration of H.R. 1023.
On October 29, 1997, the Judiciary Committee ordered H.R.
1023 favorably reported to the House with amendment by voice
vote.
On March 25, 1998, the Judiciary Committee reported H.R.
1023 to the House as H. Rept. 105-465 (Part I).
On May 7, 1998, the Committee on Ways and Means reported
H.R. 1023 to the House with amendment as H. Rept. 105-465 (Part
II).
On May 13, 1998, the Committee on Commerce was discharged
from consideration of H.R. 1023.
On May 19, 1998, the House passed H.R. 1023 by a voice
vote.
On September 23, 1998, the Senate Committee on Labor and
Human Resources ordered H.R. 1023 favorably reported to the
Senate.
On October 21, 1998, the Senate passed H.R. 1023 by
unanimous consent.
On November 12, 1998, the President signed H.R. 1023 into
law (Public Law 105-369).
Action on Other Public Legislation
LEGISLATION PASSED BY THE HOUSE
H.R. 2027, Regarding Canadian Border Boat Landing Permits
Currently, American and Canadian small boat operators and
passengers returning to the United States from Canadian waters
must either enter through a port-of-entry or possess approved
I-68 (Canadian Border Boat Landing Permit) forms issued by the
Immigration and Naturalization Service for $16 and good for 1
year. While the I-68 form allows individuals on boats to enter
the United States without being inspected at each docking, the
persons are physically inspected and entered into INS records
once a year when applying for the forms at INS offices.
In order not to inhibit recreational and tourist boating
excursions from American shores which often cross into Canadian
waters while at the same time not facilitating unauthorized
entry into the United States, H.R. 2027 provides that in the
case of a United States citizen traveling on a small boat on a
trip between the United States and Canada of not more than 72
hours duration, the citizen need not obtain a I-68 permit if
the citizen is not the owner or operator of the boat and
carries a U.S. passport for the duration of the trip. The bill
would create a pilot project lasting through the end of 1998.
At the conclusion of the pilot, the INS will provide Congress a
report indicating whether the pilot has had any impact on
illegal immigration into the United States.
On June 24, 1997, Representative Steven LaTourette
introduced H.R. 2027.
On June 26, 1997, the Subcommittee on Immigration and
Claims held a hearing on H.R. 2027. Testimony was received from
Representative Steven LaTourette; Donna Kay Barnes, Chief
Inspector, Division of Inspections, Immigration and
Naturalization Service; Elaine Dickinson, Director, State
Affairs, Boat Owners Association of the United States; and Rolf
Ting, President, Greater Cleveland Boating Association.
On July 15, 1997, the Subcommittee on Immigration and
Claims ordered H.R. 2027 reported to the Judiciary Committee by
voice vote.
On July 23, 1997, the Judiciary Committee ordered H.R. 2027
favorably reported to the House by voice vote.
On September 18, 1997, the Judiciary Committee reported
H.R. 2027 to the House (H. Rept. 105-257).
On September 23, 1997, the House passed H.R. 2027 under
suspension of the rules by a vote of 412-5.
No further action was taken on H.R. 2027 in the 105th
Congress.
H.R. 2570, the Forced Abortion Condemnation Act
H.R. 2570 would have prohibited the Secretary of State from
issuing any visa to, and the Attorney General from admitting to
the United States, any Chinese national who has been found to
have been involved in the enforcement of population control
policies resulting in a woman being forced to undergo an
abortion against her will, or resulting in a man or woman being
forced to undergo sterilization against his or her will. The
President would have been authorized to waive such prohibitions
if waiver was in the national interest of the United States and
the Congress was notified in writing.
On September 29, 1997, Representative Tillie Fowler
introduced H.R. 2570.
On November 6, 1997, the House passed H.R. 2570 (as
amended) by a vote of 415-1.
No further action was taken on H.R. 2570 in the 105th
Congress.
H.R. 2920, Amending Section 110 of the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 as to Implementation of an
Automated Entry-Exit Control System
H.R. 2920 would have extended the deadline for
implementation of the automated entry-exit system at land
borders required by section 110 of the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996, Public Law
104-208, from September 30, 1998, until September 30, 1999, and
would have required that the system implemented not
significantly disrupt trade, tourism, or other legitimate
cross-border traffic at land border points of entry.
On November 7, 1997, Representative Gerald Solomon
introduced H.R. 2920.
On November 10, 1997, the House passed H.R. 2920 by a vote
of 325 to 90.
On July 30, 1998, the Senate amended H.R. 2920 and passed
the amended bill by unanimous consent.
No further action was taken in the 105th Congress (but see
Amendment to section 110 of the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 Regarding an Automated
Entry-Exit Control System in Public Legislation Enacted into
Law).
H.R. 967, Requiring the Denial of Visas to Chinese Government Officials
Responsible for Religious Persecution
On March 6, 1997, Representative Benjamin Gilman introduced
H.R. 967, which in part required the denial of visas to Chinese
government officials responsible for religious persecution.
On July 24, 1997, the Subcommittee held a hearing on H.R.
967. Testimony was received from Representative Gilman and
Martin Dannenfelser, Jr., Assistant to the President for
Government Relations, Family Research Council.
On October 7, 1997, the Judiciary Committee was discharged
from consideration of H.R. 967.
On November 6, 1997, the House passed H.R. 967 by a vote of
366-54.
H.R. 992, the Tucker Act Shuffle Relief Act
H.R. 992 was designed to end the ``Tucker Act Shuffles''
that currently can bounce property owners between U.S. District
Courts and the Court of Federal Claims when seeking redress
against the federal government for the taking of their property
(as provided in the Fifth Amendment to the U.S. Constitution).
The bill would have ended the Tucker Act Shuffles by (1)
granting both U.S. District Courts and the Court of Federal
Claims the power to determine all claims--whether for monetary
relief or other relief (such as injunctive and declaratory
relief) and including related tort claims--arising out of
federal agency actions alleged to constitute takings (or not to
constitute takings only because the actions were not in
accordance with lawful authority), (2) granting the Court of
Federal Claims the power to provide all remedies, and (3)
repealing section 1500 of section 28 of the U.S. Code. Under
the bill, a property owner would elect which court should hear
and determine the claims as to him or herself and all appeals
would be heard by the U.S. Court of Appeals for the Federal
Circuit.
On March 6, 1997, Subcommittee on Immigration and Claims
Chairman Lamar Smith introduced H.R. 992, the ``Tucker Act
Shuffle Relief Act of 1997.''
On September 10, 1997, the Subcommittee on Immigration and
Claims held a hearing on H.R. 992. Testimony was received from
Michael Noone, Catholic University of America, Columbus School
of Law; Stephen Kinnard, Skadden, Arps, Slate, Meagher & Flom;
John Echeverria, Georgetown University Law Center; Eleanor
Acheson, Assistant Attorney General, Office of Policy
Development, U.S. Department of Justice; the Honorable Loren
Smith, Chief Judge, U.S. Court of Federal Claims; Nancie
Marzulla, President and Chief Legal Counsel, Defenders of
Property Rights; Wallace Klussmann; and Edward Baird, Jr.,
Wilcox & Baird. Additional material was received from Ms.
Marzulla.
On October 6, 1997, the Subcommittee on Immigration and
Claims ordered H.R. 992 reported to the Judiciary Committee,
with an amendment in the nature of a substitute, by voice vote.
On October 7, 1997, the Judiciary Committee ordered H.R.
992 reported to the House by a vote of 17-13. An amendment by
Representative Melvin Watt to grant U.S. District Courts, but
not the Court of Federal Claims, jurisdiction to determine all
claims arising out of alleged takings, and to strike the repeal
of section 1500, was defeated by a vote of 12-16.
On March 3, 1998, the Judiciary Committee reported H.R. 992
to the House (H. Rept. 105-424).
On March 11, 1998, the House passed a Rules Committee
resolution (H. Res. 382) by voice vote.
On March 12, 1998, the House passed H.R. 992 by a vote of
230-180. The House adopted an amendment by Representative Lamar
Smith by voice vote that clarified that the bill did not
override federal preclusive review statutes. The House rejected
an amendment by Representative Melvin Watt, largely similar to
his Judiciary Committee amendment, by a vote of 206-206.
No further action was taken on H.R. 992 during the 105th
Congress.
H.R. 2759, the Health Professional Shortage Area Nursing Relief Act
H.R. 2759 would have created a new temporary registered
nurse visa program designated ``H-1C'' that would have provided
up to 500 visas a year and that would have sunsetted in 4
years. To be able to petition for an alien, an employer would
have had to meet four basic conditions. First, the employer
would have had to be located in a health professional shortage
area as designated by the Department of Health and Human
Services. Second, the employer would have had to have at least
190 acute care beds. Third, a certain percentage (35%) of the
employer's patients would have had to be Medicare patients.
Fourth, a certain percentage (28%) of patients would have had
to be Medicaid patients. The bill contained the most important
protections for American nurses that had been contained in the
expired H-1A temporary registered nurse visa program and had
added additional ones of its own.
On October 29, 1997, Representative Bobby Rush introduced
H.R. 2759.
On November 5, 1997, the Subcommittee on Immigration and
Claims held a hearing on H.R. 2759. Testimony was received from
Representative Bobby Rush; Neil Sampson, Acting Associate
Administrator for Health Professions, Health Resources and
Services Administration, U.S. Department of Health and Human
Services; Ron Campbell, Vice President for Patient Care
Services, St. Bernard Hospital and Health Care Center, Chicago,
Illinois; Cheryl Peterson, Associate Director for Federal
Government Relations, American Nurses Association; and Mark
Stauder, President and Chief Operating Officer, Mercy Regional
Medical Center, Laredo, Texas.
On February 4, 1998, the Subcommittee on Immigration and
Claims ordered H.R. 2759 reported, as amended, to the Judiciary
Committee by voice vote.
On March 24, 1998, the Judiciary Committee ordered H.R.
2759 favorably reported by voice vote. An amendment by
Representative Conyers was adopted by voice vote. In addition
to modifying the H-IC program, the amendment provided that the
certification requirement for alien health care workers found
in section 212(a)(5)(C) of the Immigration and Nationality Act
would not apply to aliens who held full and unrestricted
licenses as nurses or physical therapists in the state of
intended employment.
On August 3, 1998, the Judiciary Committee reported H.R.
2759 to the House (H. Rept. 105-668). On the same day, the
House passed H.R. 2759, as amended, under suspension of the
rules by voice vote.
A modified version of H.R. 2759 was included in S. 2260,
the Senate-passed version of the fiscal 1999 appropriations
bill for the Departments of Commerce, Justice and State.
No further action was taken on H.R. 2759 in the 105th
Congress.
Legislation Rejected by the House of Representatives
H.R. 1428, the Voter Eligibility Verification Pilot Program Act
Section 216 of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996, Public Law 104-208, provided that
it shall be unlawful for any alien to vote in any federal
election. Violators of this provision can be fined, imprisoned
for not more than 1 year, or both. In addition, the Act made an
alien who has voted in violation of federal, state, or local
law inadmissable to the United States and deportable if here.
There is currently no satisfactory way for local registrars
to ensure that noncitizens are not on their voting rolls or for
the Justice Department to enforce the criminal penalties.
Attempts have been made to check voting rolls against
Immigration and Naturalization Service records. However, INS
data at best can only tell that a voter is a legal alien or a
naturalized citizen. INS data cannot tell whether a voter is a
native-born U.S. citizen or an illegal alien.
H.R. 1428 would have required the Attorney General, in
consultation with the Commissioner of Social Security, to
establish a pilot program that would respond to inquiries made
by state or local officials with responsibility for determining
individuals' qualifications to vote in order to verify these
individuals' citizenship. The pilot program would have lasted
until September 30, 2001, and would have operated in, at a
minimum, the states of California, New York, Texas, Florida,
and Illinois. Use of the system would have been voluntary and
the system would have had to have reasonable safeguards against
its resulting in unlawful discriminatory practices based on
national origin or citizenship status, including the selective
or unauthorized use of the system.
Under the verification system, the Social Security
Administration would compare names, dates of birth, and social
security numbers against SSA records in order to confirm (or
not confirm) the correspondence of the names and numbers, and
whether the individuals were citizens. In cases where the SSA
could not provide confirmation of individuals' citizenship, the
INS would then compare the names and dates of birth against INS
records in order to confirm or not confirm the correspondence
of the names and dates of birth and whether the individuals
were citizens. Procedures were provided for rejecting voter
registration applications and removing names from lists of
eligible voters when citizenship was not verified.
On April 24, 1997, Representative Stephen Horn introduced
H.R. 1428.
On June 25, 1997, the Subcommittee on Immigration and
Claims held a hearing on H.R. 1428. Testimony was received from
Representative Stephen Horn; David Ogden, Associate Deputy
Attorney General, U.S. Department of Justice; Sandy Crank,
Associate Commissioner for Policy and Planning, Social Security
Administration; Daniel Stein, Executive Director, Federation
for American Immigration Reform; Theresa LePore, Supervisor of
Elections, West Palm Beach, Florida; and Becky Cain, President,
the League of Women Voters.
On February 12, 1998, the House failed to pass H.R. 1428
under suspension of the rules (a two-thirds vote required for
passage) by a vote of 210(in favor)-200(opposed). The bill the
House considered was different from that introduced by
Representative Horn in a number of ways, primarily in that the
verification system was made into a pilot program.
No further action was taken on H.R. 1428 in the 105th
Congress.
Legislation Passed by the Judiciary Committee
H.R. 371, the Hmong Veterans Naturalization Act of 1997
The Hmong are a mountain people from southern China and
parts of Burma, Laos, Thailand, and Vietnam. Hmong soldiers
fought the Communist Pathet Lao movement in Laos, and many
Hmong later assisted U.S. forces during the Vietnam War. After
the war ended in 1975, the Pathet Lao gained control of Laos
and persecuted and imprisoned many of the Hmong allies of the
United States. Between 130,000 and 150,000 Laotian Hmong have
entered the U.S. as refugees since 1975. Many Hmong refugees
have found it difficult to naturalize because of their
difficulty in learning English (because their language did not
have a written form until recent decades). In order to
naturalize, permanent residents must generally demonstrate an
understanding of the English language, including an ability to
read, write, and speak words in ordinary usage in the English
language.
H.R. 371 would have exempted naturalization applicants from
the English requirement if they served with special guerilla
units or irregular forces operating from bases in Laos in
support of the United States during the Vietnam War (or were
spouses or widows of such persons on the day on which such
persons applied for admission as refugees). The bill would also
have provided these aliens with special consideration as to the
civics requirement for naturalization (Naturalization
applicants must demonstrate a knowledge and understanding of
the fundamentals of the history, and of the principles and form
of government, of the United States.).
The bill would have required aliens to submit documentation
of their, or their spouse's, service with a special guerilla
unit, or irregular forces which the Attorney General would
evaluate. The bill provided that a maximum of 45,000 permanent
residents could take advantage of the benefits provided by the
bill. This provision was added as an anti-fraud measure, given
the extreme difficulty in determining which Hmong actually
served in guerilla units. This number is the outside range of
the number of Hmong who actually should qualify under the bill.
On January 7, 1997, Representative Bruce Vento introduced
H.R. 371.
On June 26, 1997, the Subcommittee on Immigration and
Claims held a hearing on H.R. 371. Testimony was received from
Congressman Bruce Vento; Louis D. Crocetti, Jr., Associate
Commissioner for Examinations, Immigration and Naturalization
Service; Susan Haigh, Ramsey County Commissioner, St. Paul,
Minnesota; Mark Pratt; and Mark Krikorian, Executive Director,
Center for Immigration Studies.
On June 11, 1998, the Subcommittee on Immigration and
Claims ordered H.R. 371 reported to the Judiciary Committee as
an amendment in the nature of a substitute by voice vote.
On June 17, 1998, the Judiciary Committee ordered H.R. 371
reported to the House by a vote of 20-9. The Committee rejected
by a vote of 11-18 an amendment by Representative Melvin Watt
that would have struck the 45,000 cap.
No further action on H.R. 371 was taken in the 105th
Congress.
Legislation Passed by the Subcommittee
H.R. 2413, the Immigration Technical Corrections Act of 1997
H.R. 2413 would have made various technical corrections to
the Illegal Immigration Reform and Immigrant Responsibility Act
of 1996, the Immigration Act of 1990, and the Immigration and
Nationality Act of 1952.
On September 5, 1997, Subcommittee on Immigration and
Claims Chairman Lamar Smith introduced H.R. 2413.
On September 8, 1997, the Subcommittee on Immigration and
Claims ordered H.R. 2413 reported to the Judiciary Committee by
voice vote.
No further action on H.R. 2413 was taken in the 105th
Congress.
H.R. 3410, the Temporary Agricultural Worker Act of 1998
H.R. 3410 would have set up a 24-month agricultural
guestworker pilot program that would have operated as an
alternative to the current H-2A program. The pilot program
would have allowed up to 20,000 aliens to be admitted or
provided status in a fiscal year. The pilot would have operated
in no less than 5 geographically and agriculturally diverse
areas designated by the Secretary of Agriculture. The pilot
would not have required growers applying for guestworkers to
engage in positive recruitment efforts for domestic workers, as
does the current H-2A program.
In order that any illegally overstaying pilot program
aliens would not have contributed to an overall increase in
immigration to the United States, the bill contained a
numerical offset. Beginning in the second fiscal year of the
pilot program's operation, (1) the number of available
unskilled worker immigrant visas (currently 5,000-10,000 per
year) would have been reduced by one-half of the number of the
previous fiscal year's pilot program aliens (up to 5,000), and
(2) the number of available diversity immigrant visas
(currently 50,000-55,000 per year) would have been reduced by
one-half of the number of the previous fiscal year's pilot
program aliens (up to 5,000).
On March 10, 1998, Representative Robert Smith introduced
H.R. 3410.
On March 12, 1998, the Subcommittee on Immigration and
Claims ordered H.R. 3410 reported to the Judiciary Committee by
voice vote.
No further action on H.R. 3410 was taken in the 105th
Congress.
H.R. 2837, Citizenship Integrity and Backlog Reduction Act
On November 6, 1997, Subcommittee on Immigration and Claims
Chairman Lamar Smith and Senate Immigration Subcommittee
Chairman Spencer Abraham introduced H.R. 2837/S.1382, the
``Naturalization Reform Act of 1997.'' This bill addressed the
naturalization process integrity problems caused by the INS'
``Citizenship USA'' program in 1995 and 1996. The bill
contained provisions preventing deportable criminals from
receiving citizenship, increasing the ``good moral character''
period required for citizenship, improving the integrity of
required applicant interviews and criminal background checks,
requiring inspections and controls of citizenship testing
contractors, improving accountability over green cards and
naturalization certificates, clarifying and expanding the
process of denaturalizing wrongdoers who were mistakenly
granted citizenship, and mandating continued oversight of the
naturalization program.
On March 5, 1998, the Subcommittee on Immigration and
Claims held a hearing on H.R. 2837. Testimony was received from
Paul Virtue, General Counsel, Immigration and Naturalization
Service; James S. Angus, Acting Executive Director, Office of
Naturalization Operations, Department of Justice; Richard
Estrada, Dallas Morning News, Former Member of the U.S.
Commission on Immigration Reform; Robert Hill, Venable Baetjer
Howard & Civiletti, LLP, Former Member of the U.S. Commission
on Immigration Reform; Michael Teitelbaum, Alfred P. Sloan
Foundation, Former Member of the U.S. Commission on Immigration
Reform; Rosemary Jenks, Center for Immigration Studies; and
Mark Hetfield, Project Coordinator, Hebrew Immigrant Aid
Society. On March 19, 1998, the Subcommittee conducted a
follow-up hearing at which James Angus, Acting Executive
Director, Office of Naturalization Operations, Immigration and
Naturalization Service, and Edward Murphy, deputy director of
the office, testified regarding the pending caseload of
naturalization applications.
On June 11, 1998, the Subcommittee on Immigration and
Claims reported H.R. 2837 to the Judiciary Committee by a vote
of 5-2. An amendment in the nature of a substitute, offered by
Chairman Smith was adopted. The amendment changed the name of
the bill to the ``Citizenship Integrity and Backlog Reduction
Act of 1998,'' and incorporated modifications suggested at the
Subcommittee's hearings. The amendment in the nature of a
substitute replaced the ``good moral character'' provision with
a provision strengthening the procedure for determining ``good
moral character,'' replaced the citizenship testing provision
with a provision centralizing and standardizing citizenship
testing and providing study aids therefor, expanded the
oversight provisions of the naturalization process to ensure
expeditious processing, improved customer service and continued
process integrity, and added new provisions reducing
application backlogs by providing additional funding and
eliminating redundant background checks.
No further action on H.R. 2837 was taken in the 105th
Congress.
H.R. 4264, Restructuring the Immigration and Naturalization Service
During the 105th Congress, several different entities
presented plans for restructuring the Immigration and
Naturalization Service. Some plans were introduced as bills
(H.R. 2588, H.R. 3904, H.R. 4363) and others were merely
published in reports by nongovernmental organizations, such as
the Carnegie Endowment for International Peace. On May 21,
1998, the Subcommittee on Immigration and Claims held an
oversight hearing regarding the various plans for
restructuring. All Subcommittee members who were present and
all witnesses who testified at the hearing agreed that the INS
as it exists today does not perform adequately.
On July 17, 1998, Representative Harold Rogers introduced
H.R. 4264. H.R. 4264 would remove the enforcement components of
the INS and place them in a new ``Bureau of Enforcement and
Border Affairs'' in the Department of Justice. The enforcement
components include the Border Patrol, Investigations, Detention
and Deportation, Intelligence and Inspections. Under H.R. 4264,
the INS would retain the service components, which perform
operations such as the adjudication of applications for
benefits such as naturalization, visa petitions, and asylum.
On July 30, 1998, the Subcommittee on Immigration and
Claims amended H.R. 4264 and reported it favorably to the
Judiciary Committee by voice vote.
No further action on H.R. 4264 was taken in the 105th
Congress.
Hearings on Public Legislation not Processed
IMMIGRATION
H.R. 231 and H.R. 471
On May 13, 1997, the Subcommittee on Immigration and Claims
held hearings on H.R. 231, a bill introduced by Representative
Bill McCollum which would have improved the integrity of the
social security card, and H.R. 471, a bill introduced by
Representative Elton Gallegly which would have prevented work
experience gained while ineligible to work from being used by
an alien to help procure an H-1B visa (hearings were also held
on H.R. 1493 and H.R. 429). Testimony on H.R. 231 was received
from Representative McCollum; Sandy Crank, Associate
Commissioner for Policy and Planning, Social Security
Administration; Roy Beck; Rosemary Jenks, Senior Fellow, Center
for Immigration Studies; and Stephen Moore, the CATO Institute.
Testimony on H.R. 471 was received from Representative
Gallegly; Paul Virtue, Immigration and Naturalization Service;
and Mark Krikorian, Executive Director, Center for Immigration
Studies.
H.R. 7
On June 25, 1997, the Subcommittee on Immigration and
Claims held a hearing on H.R. 7, a bill introduced by
Representative Brian Bilbray that would have ended the right to
birthright citizenship (a hearing was also held on H.R. 1428).
Testimony on H.R. 7 was received from Representative Bilbray;
Dawn Johnsen, Acting Assistant Attorney General for Office of
Legal Counsel, U.S. Department of Justice; Dr. Edward Erler,
California State University at San Bernardino; Pam Slater,
Chairwoman, San Diego County Board of Supervisors, San Diego,
California; Phil Peters, Alexis de Tocqueville Institute; and
Gwat Bhattacharjie.
H.R. 1543, H.R. 2172
On July 24, 1997, the Subcommittee on Immigration and
Claims held hearings on H.R. 1543, a bill introduced by
Representative Ronald Dellums which would have allowed aliens
to receive student visas in certain instances to study in
publically funded adult education programs, and on H.R. 2172, a
bill introduced by Representative Barney Frank, which would
have allowed aliens to receive student visas to study at public
elementary or secondary schools if the schools consent and no
federal funds are used to pay the cost of the education (a
hearing was also held on H.R. 967). Testimony on H.R. 1543 was
received from Representative Dellums; Jacquelyn A. Bednarz,
Special Assistant to the Associate Commissioner for
Examinations, Immigration and Naturalization Service; Cora
Jckowski, ESL Coordinator and Foreign Student Advisor, Central
High Community School, Granite School District, Salt Lake City,
Utah; and Judy Judd Price, Center Director, ELS Language
Centers. Testimony on H.R. 2172 was received from
Representative Frank; Jacquelyn A. Bednarz; Rodney Barker,
Member, Newton, Massachusetts School Committee; and K.C.
McAlpin, Deputy Director, Federation for American Immigration
Reform.
H.R. 225
On June 4, 1998, the Subcommittee on Immigration and Claims
held a hearing on H.R. 225, a bill introduced by Representative
Bill McCollum that would have created a nonimmigrant visitor's
visa for certain aliens at least 55 years of age. Testimony was
received from Representative McCollum; Paul Virtue, General
Counsel, Immigration and Naturalization Service; Steve Beckham,
Federal Liaison, South Carolina Department of Parks, Recreation
and Tourism; and Ethel Laird (Canadian citizen).
CLAIMS
H.R. 3022
On June 18, 1998, the Subcommittee on Immigration and
Claims held a hearing on H.R. 3022, which would amend title 10,
United States Code, to authorize the settlement and payment of
claims against the United States for injury to and death of
members of the U.S. Armed Forces and Department of Defense
civilian employees arising from incidents in which claims are
settled for injury to and death of foreign nationals. The
hearing also reviewed H.R. 2986, which was for the relief of
the survivors of an incident when United States fighter
aircraft mistakenly shot down 2 helicopters in Iraq. Testimony
was received from Represenative Mac Collins; Elijay B. Bowron,
Assistant Comptroller General for Special Investigations,
Office of Special Investigations, U.S. General Accounting
Office, accompanied by Don Fulwider and Don Wheeler, Deputy
Directors, Investigations; Captain Elliott L. Bloxom, Director
of Compensation, Military Personnel Policy, Office of Under
Secretary of Defense (Personnel and Readiness), U.S. Department
of Defense, accompanied by Frances Adams, Chief, International
Torts Branch, Tort Claims and Litigation Division, Air Force
Legal Services Agency; Donald M. Remy, Deputy Assistant
Attorney General, Civil Division, U.S. Department of Justice;
Mrs. Cornelia Bass; Mrs. Georgia Bergmann; and Lt. Col. (Ret.)
Robert McKenna.
H.R. 3539
On June 25, 1998, the Subcommittee on Immigration and
Claims held a hearing on H.R. 3539, the ``Radiation Workers
Justice Act of 1998.'' H.R. 3539 would have amended the
Radiation Exposure Compensation Act of 1990 to expand the
number of individuals who may receive payment under the Act to
include above ground uranium miners and uranium millers, and
made changes to the Act to reflect inadequacies in the program
that have become apparent over time. Testimony was received
from Representative Bill Redmond; Donald M. Remy, Deputy
Assistant Attorney General, Civil Division, U.S. Department of
Justice; Lawrence J. Fine, M.D., Director, Division of
Surveillance, Hazard Evaluations and Field Studies, National
Institute for Occupational Safety and Health, Center for
Disease Control and Prevention, U.S. Department of Health and
Human Services; Dr. David Coultos, Health Science Center,
University of New Mexico; Dr. Susan E. Dawson, Department of
Sociology, Utah State University, accompanied by Dr. Gary E.
Madsen, Utah State University; Mr. Paul Robinson, S.W. Research
& Information Center; Honorable Thomas Atcitty, President, The
Navajo Nation, accompanied by E. Cooper Brown; Honorable Roland
Johnson, Governor, Pueblo of Laguna, accompanied by Tribal
Councilman Larry Lente; the Honorable Reginald Pascual,
Governor, Pueblo of Acoma, accompanied by Tribal Councilman
David Villo; Mr. Paul Hicks, New Mexico Uranium Workers
Council, accompanied by Kevin Martinez and Earl Chavez,
Chairman, Cibola County Commission; and Curtis Freeman, Utah
Uranium Workers Council.
Federal Charters
Subcommittee Policy on New Federal Charters
On March 13, 1997, the Subcommittee on Immigration and
Claims adopted the following policy concerning the granting of
new federal charters:
The Subcommittee will not consider any legislation to
grant new federal charters because such charters are
unnecessary for the operations of any charitable, non-
profit organization and falsely imply to the public
that a chartered organization and its activities carry
a congressional ``seal of approval,'' or that the
Federal Government is in some way responsible for its
operations. The Subcommittee believes that the
significant resources required to properly investigate
prospective chartered organizations and monitor them
after their charters are granted could and should be
spent instead on the Subcommittee's large range of
legislative and other substantive policy matters. This
policy is not based on any decision that the
organizations seeking federal charters are not
worthwhile, but rather on the fact that federal
charters serve no valid purpose and therefore ought to
be discontinued.
This policy represented a continuation of the
Subcommittee's informal policy, which was put in place at the
start of the 101st Congress and continued through the 102nd-
104th Congresses, against granting new federal charters to
private, non-profit organizations.
A federal charter is an Act of Congress passed for private,
non-profit organizations. The primary reasons that
organizations seek federal charters are to have the honor of
federal recognition and to use this status in fundraising.
These charters grant no new privileges or legal rights to
organizations. At the conclusion of the 104th Congress,
approximately 90 private, non-profit organizations had federal
charters over which the Judiciary Committee has jurisdiction.
About half of these had only a federal charter, and were not
incorporated in any state and thus not subject to any state
regulatory requirements.
Those organizations chartered more recently are required by
their charters to submit annual audit reports to Congress,
which the Subcommittee sends to the General Accounting Office
to determine if the reports comply with the audit requirements
detailed in the charter. The GAO does not conduct an
independent or more detailed audit of chartered organizations.
Amendment to the American Legion Charter
S. 1377 amended the federal charter of the American Legion
to change one of the qualifying dates for membership from
December 22, 1961 to February 28, 1961.
On November 5, 1997, Senator Orrin Hatch introduced S.
1377. On the same day, the Senate passed the bill by unanimous
consent.
On November 8, 1997, the House passed S. 1377 under
suspension of the rules by voice vote.
On November 20, 1997, the President signed S. 1377 into law
(Public Law 105-110).
S. 1759, Federal Charter for the American GI Forum
S. 1759 granted a federal charter to the American GI Forum
of the United States. The American GI Forum of the United
States is an Hispanic veterans family organization that has
been in existence for 50 years. The organization has more than
100,000 members in 500 chapters in 32 states and Puerto Rico.
Although predominantly Hispanic, the American GI Forum is open
to all veterans and their families.
The House Subcommittee of jurisdiction suspended the
granting of federal charters to private, nonprofit
organizations in 1989. However, it came to the attention of the
Committee that the circumstances surrounding the American GI
Forum were such that an exception to the moratorium was
appropriate. The American GI Forum was founded in 1948 in
response to a lack of respect and representation available to
Hispanic veterans within already established veterans
organizations.
In the 1960s, the American GI Forum looked into obtaining a
federal charter, as was possessed by its contemporaries, the
American Legion and the Veterans of Foreign Wars. It was told
that it could not obtain one because its membership was not
limited to veterans only. However, prior to the American GI
Forum's inquiry, many charters had been given to organizations
that were not limited to veterans, such as the National
Conference on Citizenship in 1953, Little League Baseball, Inc.
in 1955, the Boys Clubs of America in 1956, and the Big
Brothers/Sisters of America in 1958.
The American GI Forum made inquiries again in 1992 about
obtaining a federal charter and was informed of the current
moratorium on the granting of any new federal charters.
When looking at the historical record, it appeared that
general societal prejudice against Hispanics during the 1950s
and 1960s prevented the American GI Forum from receiving a
federal charter.
The American GI Forum's history and situation is unique.
So, as a matter of policy, the Committee felt it was
appropriate to make an exception to the moratorium on the
granting of federal charters in this instance.
On March 13, 1998, Senator Orrin Hatch introduced S. 1759.
On May 12, 1998, Representative Ciro Rodriguez introduced
H.R. 3843, its companion bill.
On July 23, 1998, the Subcommittee on Immigration and
Claims favorably reported H.R. 3843 by voice vote to the
Judiciary Committee.
On July 31, 1998, the Senate passed S. 1759, as amended, by
unanimous consent.
On August 3, 1998, the House passed S. 1759 under
suspension of the rules by voice vote.
On August 13, 1998, the President signed S. 1759 into law
(Public Law 105-231).
Private Claims and Private Immigration Legislation
During the 105th Congress, the Subcommittee on Immigration
and Claims received 34 private claims bills and 40 private
immigration bills. The Subcommittee held no hearings on these
bills. The Subcommittee recommended six private claims bills
and 10 private immigration bills to the Judiciary Committee.
The Committee ordered all these bills reported favorably to the
House. The House passed all but one private immigration bill.
Of these, one private claims bill and nine private immigration
bills were passed by the Senate and signed into law by the
President.
Oversight Activities
IMMIGRATION
Implementation of Title III of the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996
On February 11, 1997, the Subcommittee on Immigration and
Claims held an oversight hearing on the implementation of Title
III of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996. Testimony was received from Paul
Virtue, Acting Executive Associate Commissioner, Programs,
Immigration and Naturalization Service, accompanied by David
Martin, General Counsel; Paul W. Schmidt, Chairman, Board of
Immigration Appeals; and Michael J. Creppy, Chief Immigration
Judge, Executive Office for Immigration Review.
Deception of a Congressional Task Force Delegation to Miami District of
INS (Krome)
On February 27, 1997, the Subcommittee on Immigration and
Claims held an oversight hearing on deception of a
Congressional task force delegation to the Miami District of
the Immigration and Naturalization Service. Testimony was
received from Stephen Colgate, Assistant Attorney General for
Administration, U.S. Department of Justice; and Doris Meissner,
Commissioner, Immigration and Naturalization Service,
accompanied by William Slattery, Executive Associate
Commissioner, and Chris Sale, Deputy Commissioner.
Improper Granting of U.S. Citizenship Without Conducting Criminal
Background Checks
On March 5, 1997, the Subcommittee on Immigration and
Claims held an oversight hearing on the improper granting of
U.S. citizenship without conducting criminal background checks.
Testimony was received from Stephen Colgate, Assistant Attorney
General for Administration, U.S. Department of Justice; Dawn
Johnsen, Acting Assistant Attorney General for the Office of
Legal Counsel, U.S. Department of Justice; Laurie E. Ekstrand,
Associate Director for Administration of Justice, General
Government Division, General Accounting Office; Gary Ahrens,
KPMG Peat Marwick LLP; Doris M. Meissner, Commissioner,
Immigration and Naturalization Service; David Rosenberg,
Citizenship USA Program Director, Immigration and
Naturalization Service; Louis D. Crocetti, Associate
Commissioner for Examinations, Immigration and Naturalization
Service; and David Martin, General Counsel, Immigration and
Naturalization Service.
Border Security and Deterring Illegal Entry into the U.S.
On April 23, 1997, the Subcommittee on Immigration and
Claims held an oversight hearing on border security and
deterring illegal entry into the United States. Testimony was
received from Representative Silvestre Reyes; Alan Bersin,
United States Attorney, Southern District of California,
Attorney General's Representative to the Southwest Border,
accompanied by Donnie Marshall, Chief of Operations, Drug
Enforcement Administration, and Thomas Kneir, Deputy Assistant
Director of the Criminal Investigative Division, Federal Bureau
of Investigation; George Regan, Acting Assistant Commissioner
for Enforcement, Immigration and Naturalization Service,
accompanied by Joseph Greene, District Director--Denver,
Colorado, James Bailey, Assistant Regional Director for
Intelligence for Central Region (Dallas, Texas), Jose Garza,
Chief Border Patrol Agent, McAllen, Texas Sector, Louis F.
Nardi, Director, Smuggling/Criminal Organizations Branch, and
Anne Veysey, Employer Sanctions Specialist; Samuel Banks,
Deputy Commissioner, U.S. Customs Service, U.S. Department of
the Treasury; Jonathan Winer, Deputy Assistant Secretary of
State, International Narcotics Matters and Law Enforcement
Affairs, U.S. Department of State; Richard J. Gallo, Senior
Special Agent, U.S. Department of Agriculture; Dr. Roy Godson,
Professor of Government, Georgetown University, President,
National Strategy Information Center; Robert Heiserman, Denver,
Colorado; Elisa Massimino, Director, Washington, D.C. Office,
Lawyers Committee for Human Rights.
Safeguarding the Integrity of the Naturalization Process
On April 30, 1997, the Subcommittee on Immigration and
Claims held an oversight hearing on safeguarding the integrity
of the naturalization process. Testimony was received from
Stephen Colgate, Assistant Attorney General for Administration,
U.S. Department of Justice; Gary Ahrens, Principal, KPMG Peat
Marwick LLP; Norman Rabkin, Director, Administration of Justice
Issues, General Government Division, General Accounting Office;
Dennis Kurre, Deputy Assistant Director, Criminal Justice
Information Services Division, Federal Bureau of Investigation;
Doris Meissner, Commissioner, Immigration and Naturalization
Service, accompanied by Chris Sale, Deputy Commissioner, and
David Martin, General Counsel; Representative Ileana Ros-
Lehtinen; Rosemary Jenks, Senior Fellow, Center for Immigration
Studies; and Gary Rubin, Director--Public Policy, New York
Association for New Americans.
Visa Fraud and Immigration Benefits Application Fraud
On May 20, 1997, the Subcommittee on Immigration and Claims
held an oversight hearing on visa fraud and immigration
benefits application fraud. Testimony was received from Mary
Ryan, Assistant Secretary, Bureau of Consular Affairs, U.S.
Department of State, accompanied by Ed Vasquez, Consular
Affairs, Fraud Prevention Program, and Thomas McKeever,
Diplomatic Security, Criminal Investigations Division; Paul W.
Virtue, Acting Executive Associate Commissioner for Programs,
Immigration and Naturalization Service, accompanied by William
Yates, Director, Eastern Service Center (Vermont), Gideon
Epstein, Chief Forensic Document Analyst, Forensic Documents
Laboratory, William West, Chief, Investigative Division Special
Operations Unit, Miami District, and Michael Cutler, Senior
Special Agent, New York District; Michael R. Bromwich,
Inspector General, U.S. Department of Justice; and Benjamin
Nelson, Director, International Relations and Trade Issues,
National Security and International Affairs Division, U.S.
General Accounting Office.
Visa Waiver Pilot Program
On June 17, 1997, the Subcommittee on Immigration and
Claims held an oversight hearing on the visa waiver pilot
program. Testimony was received from Representative Jay Kim;
Representative Neil Abercrombie; Representative Barney Frank;
Mary Ryan, Assistant Secretary, Bureau of Consular Affairs,
U.S. Department of State; Michael Cronin, Assistant
Commissioner, Office of Inspections, Immigration and
Naturalization Service; William S. Norman, President and CEO,
Travel Industry Association of America; Janet Thomas, Director
of Facilitation, Air Transport Association of America; and Tami
Overby, Executive Director, American Chamber of Commerce in
Korea.
Institutional Hearing Program
On July 15, 1997, the Subcommittee on Immigration and
Claims held an oversight hearing on the Immigration and
Naturalization Service's Institutional Hearing Program to
remove incarcerated criminal aliens. Testimony was received
from Norman J. Rabkin, Director, Evi Rezmovic, Assistant
Director, Jay Jennings, Senior Evaluator, and Fred Berry,
Senior Evaluator, Administration of Justice Issues, U.S.
General Accounting Office; Paul Virtue, Executive Associate
Commissioner, Programs and Lydia St. John-Mellado, IHP
Coordinator, Immigration and Naturalization Service; Michael
Creppy, Chief Immigration Judge and Michael McGoings, Assistant
Chief Immigration Judge, Executive Office for Immigration
Review; John Clark, Asst. Director, Community Corrections &
Detention, and James Zangs, Administrator, Detention Services
Branch, Federal Bureau of Prisons; Joe Sandoval, Secretary,
California Youth and Adult Correctional Agency; David Padilla,
Chief, Management, Analysis & Evaluation Branch, California
Department of Corrections; Kelly Tucker, Correctional Services
Administrator, Florida Department of Corrections; Anthony J.
Annucci, Deputy Commissioner and Counsel and David Clark,
Program Research Specialist, New York State Department of
Correctional Services; and Catherine McVey, Asst. Director,
Programs & Services Division, Texas Department of Criminal
Justice.
Temporary Agricultural Work Visa Program
On September 24, 1997, the Subcommittee on Immigration and
Claims held an oversight hearing on temporary agricultural work
visa programs. Testimony was received from Bob Vice, President,
California Farm Bureau Federation; Jim Holt, McGuinness &
Williams; John Hancock; and Bruce Goldstein, Executive
Director, Farmworker Justice Fund.
Final Report of the Commission on Immigration Reform
On November 7, 1997, the Subcommittee on Immigration and
Claims held an oversight hearing on the final report of the
Commission on Immigration Reform. Testimony was received from
Shirley Hufstedler, Chair, U.S. Commission on Immigration
Reform, accompanied by Michael Teitelbaum, Vice Chair, Robert
Charles Hill, Commissioner, the Honorable Bruce Morrison,
Commissioner, and Susan Martin, Executive Director.
Immigration and the American Workforce for the 21st Century
On April 21, 1998, the Subcommittee on Immigration and
Claims held an oversight hearing on immigration and the
American workforce for the 21st century. Testimony was received
from John Fraser, Acting Administrator, Wage and Hour Division,
Employment Standards Administration, U.S. Department of Labor;
Carlotta Joyner, Director, Education and Employment Issues,
Health, Education, and Human Services Division, U.S. General
Accounting Office; Harris Miller, President, Information
Technology Association of America; Dr. Norman Matloff,
Department of Computer Science, University of California at
Davis; Daniel Sullivan, Senior Vice President for Human
Resources, QUALCOMM; William Payson, The Senior Staff; Darryl
Hatano, Vice President for International Trade and Government
Affairs, Semiconductor Industry Association; Peggy Taylor,
Director, Department of Legislation, AFL-CIO; Dr. Richard
Lariviere, Vice President of International Programs, University
of Texas at Austin; Dr. George Borjas, John F. Kennedy School
of Government, Harvard University; Dr. Georges Vernez, the RAND
Corporation; and Alan Reynolds, the Hudson Institute.
Alternative Proposals to Restructure the Immigration and Naturalization
Service
On May 21, 1998, the Subcommittee on Immigration and Claims
held an oversight hearing on alternative proposals to
restructure the Immigration and Naturalization Service.
Testimony was received from Representative Harold Rogers;
Representative Silvestre Reyes; Doris Meissner, Commissioner,
Immigration and Naturalization Service; Robert L. Brown,
Chairman, Immigration Directors' Association; Susan Martin,
Former Director, Commission on Immigration Reform; Demetrios
Papademetriou, Senior Associate, International Migration Policy
Program, Carnegie Endowment for International Peace; Richard
Gallo, First Vice-President, Federal Law Enforcement Officers
Association; and Diana Aviv, Director, Council of Jewish
Federations.
Alternative Technologies for Implementation of Section 110 of the
Illegal Immigration Reform and Immigrant Responsibility Act of
1996 at Land Borders
On July 23, 1998, the Subcommittee on Immigration and
Claims held an oversight hearing on alternative technologies
for implementation of section 110 of the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996 at land
borders. Testimony was received from Michael J. Hrinyak, Deputy
Assistant Commissioner for Inspections, Immigration and
Naturalization Service; Ann Cohen, Vice President, Government
Services, EDS; Paul Clark, Chief Scientist, Information
Technology, DynCorp; Donald Brady, Vice President, Transcore;
Robert Mocny, Former SENTRI Team Leader, Immigration and
Naturalization Service; Joseph O'Gorman, National Team Leader
for Land Border Passenger Processing, U.S. Customs Service;
Joseph Elias, Program Manager, Calspan Operations; Anthony
Braunscheidel, Business Development Manager, Peace Bridge
Authority, Buffalo, New York.
Problems Related to Criminal Aliens in Utah
On July 27, 1998, the Subcommittee on Immigration and
Claims held an oversight field hearing in Salt Lake City, Utah,
on problems related to criminal aliens in Utah. Testimony was
received from Mary Callaghan, Commissioner, Salt Lake County
Commission; Aaron Kennard, Sheriff, Salt Lake County; David J.
Schwendiman, United States Attorney, District of Utah, U.S.
Department of Justice; Mark Reed, Regional Director, Central
Region, Immigration and Naturalization Service, accompanied by
Michael Comfort, Acting District Director, Denver District
Office, and Meryl Rogers, Officer in Charge, Salt Lake City
Suboffice.
Oversight Investigation of the Death of Esequiel Hernandez, Jr.
In June 1997, the Subcommittee began an investigation into
the death of Esequiel Hernandez, Jr., an 18-year-old high
school student who was herding goats near the border town of
Redford, Texas, when he was shot and killed by United States
Marines performing counter-drug border surveillance for the
United States Border Patrol. The Subcommittee's investigation
required the issuance of subpoenas duces tecum by Judiciary
Committee Chairman Hyde to the U.S. Justice and Defense
Departments.
The Subcommittee issued a report in November 1998 that
concluded that Hernandez' death was attributable to a series of
failures on the part of Justice Department and Defense
Department personnel, who were negligent in providing training
and preparing for the border surveillance mission or who failed
to respond adequately to an emergency situation as it
developed. After Hernandez' death, agency personnel compounded
their previous errors by withholding information and impeding
investigations in an effort to avoid accountability that,
unfortunately, was largely successful.
The Marine Corps, to its credit, conducted a detailed
internal investigation of the shooting and disciplined a number
of officers in the chain of command. However, the four Marines
in the team that killed Hernandez suffered no adverse
consequences despite significant and disturbing evidence that
they may have been guilty of serious wrongdoing.
Neither the Border Patrol nor its parent agencies, the
Immigration and Naturalization Service and the United States
Department of Justice, conducted an internal review comparable
to that undertaken by the Marine Corps. No Justice Department
personnel were held accountable for negligence or wrongdoing
regarding the death of Esequiel Hernandez, Jr.
The report is available as Report of Chairman Lamar Smith
to Subcommittee on Immigration and Claims, Oversight
Investigation of the Death of Esequiel Hernandez, Jr., 105th
Cong., 2nd Sess. (Ser. No. 11 1998)
Refugee Consultations
I. Fiscal Year 1998
On September 10, 1997, Members of the Judiciary Committee
met with Deputy Secretary of State Strobe Talbott and other
Administration officials to discuss the Administration's
proposal for refugee admissions in fiscal year 1998. That
proposal was as follows:
Proposed Ceiling
Areas of Origin:
Africa........................................................ 7,000
East Asia.....................................................14,000
Europe:
Former Yugoslavia.........................................25,000
Former Soviet Union.......................................21,000
Latin America/Caribbean....................................... 4,000
Near East/South Asia.......................................... 4,000
Unallocated Reserve........................................... 3,000
-----------------------------------------------------------------
________________________________________________
Total.......................................................78,000
On September 30, 1997, President Clinton issued
Presidential Determination No. 97-37, which put into force a
fiscal year 1998 worldwide refugee ceiling of 83,000, including
an additional 5,000 unfunded reserve numbers allocated to the
former Soviet Union that were not in the original proposal.
By letter dated June 8, 1998, the Department of State
advised the Chairman of the Judiciary Committee of plans to use
for admissions from the former Yugoslavia up to 3,000 numbers
from the unallocated reserve, and up to 1,000 numbers from the
unfunded reserve allocated to the former Soviet Union.
By letter dated September 29, 1998, the Department of State
advised the Chairman of the Judiciary Committee of plans to use
over 30,000 total numbers for admissions from the former
Yugoslavia, and over 23,000 total numbers for admissions from
the former Soviet Union, for a total of approximately 54,000
European admissions in fiscal year 1998. The State Department
anticipated that this increase in European admissions would be
offset by shortfalls in other categories, and that total
admissions for fiscal year 1998 would be about 77,000.
II. Fiscal Year 1999
On September 17, 1998, Members of the Judiciary Committee
met with Secretary of State Madeleine Albright and other
Administration officials to discuss the Administration's
proposal for refugee admissions in fiscal year 1999. That
proposal was as follows:
Proposed Ceiling
Areas of Origin:
Africa........................................................12,000
East Asia..................................................... 9,000
Europe:
Former Yugoslavia.........................................25,000
NIS/Baltics...............................................23,000
Latin America/Caribbean....................................... 3,000
Near East/South Asia.......................................... 4,000
Unallocated Reserve........................................... 2,000
-----------------------------------------------------------------
________________________________________________
Total.......................................................78,000
On September 30, 1998, President Clinton issued
Presidential Determination No. 98-39, which put into force a
fiscal year 1999 worldwide refugee ceiling of 78,000. This
final determination was identical to the Administration's
original proposal.
CLAIMS
Health Care Initiatives Pursued Under False Claims Act that Impact
Hospitals
On April 28, 1998, the Subcommittee on Immigration and
Claims held an oversight hearing on health care initiatives
pursued under the False Claims Act that impact hospitals.
Testimony was received from Donald Stern, U.S. Attorney for the
District of Massachusetts and Chair, Attorney General's
Advisory Committee, U.S. Department of Justice; Lewis Morris,
Assistant Inspector General for Legal Affairs, and Dr. Robert
Berenson, Director, Center for Health Care Plans and Providers
Administration, U.S. Department of Health and Human Services;
Gordon Sprenger, Executive Officer, Allina Health Systems; Don
Ritchie, Administrator, Guadalupe Valley Hospital; William
Lane, President, Holy Family Hospital; Terry Cameron, Senior
Vice President, Medicode; and Ruth Blacker, Member, National
Legislative Counsel, American Association of Retired Persons.
SUBCOMMITTEE ON THE CONSTITUTION
CHARLES T. CANADY, Florida,
Chairman
ROBERT SCOTT, Virginia HENRY J. HYDE, Illinois
MAXINE WATERS, California BOB INGLIS, South Carolina
JOHN CONYERS, Jr., Michigan ED BRYANT, Tennessee
JERROLD NADLER, New York WILLIAM L. JENKINS, Tennessee
MELVIN L. WATT, North Carolina BOB GOODLATTE, Virginia
BOB BARR, Georgia
ASA HUTCHINSON, Arkansas
Tabulation and disposition of bills referred to the Subcommittee
Legislation referred to Subcommittee.............................. 153
Legislation reported favorably to full Committee.................. 10
Legislation referred adversely to full Committee.................. 0
Legislation reported without recommendation to full Committee..... 0
Legislation reported as original measure to the full Committee.... 0
Legislation discharged from the Subcommittee...................... 1
Legislation pending before the full Committee..................... 2
Legislation reported to the House................................. 7
Legislation discharged from the full Committee.................... 8
Legislation pending in the House.................................. 1
Legislation passed the House...................................... 8
Legislation pending in the Senate................................. 3
Legislation failed passage by the House........................... 4
Legislation vetoed by the President (not overridden).............. 1
Legislation enacted into public law............................... 2
Legislation on which hearings were held........................... 13
Days of hearings (legislative and oversight)...................... 27
Jurisdiction of the Subcommittee
The Subcommittee has legislative and oversight
responsibility for the Civil Rights Division and the Community
Relations Service of the Department of Justice, as well as the
U.S. Commission on Civil Rights and the Office of Government
Ethics. General legislative and oversight jurisdiction of the
Subcommittee includes civil and constitutional rights, civil
liberties and personal privacy, federal regulation of lobbying,
private property rights, federal ethics laws, and proposed
constitutional amendments.
LEGISLATION
Assisted Suicide
On June 5, 1998, the Chairman of the Judiciary Committee,
Henry J. Hyde, introduced the ``Lethal Drug Abuse Prevention
Act of 1998'' (H.R. 4006), a bill to clarify Federal law to
prohibit the dispensing or distribution of a controlled
substance for the purpose of causing, or assisting in causing,
the suicide, or euthanasia, of any individual. The Subcommittee
held a hearing on July 14, 1998. The following witnesses
testified: Representatives Earl Blumenauer; Tom A. Coburn,
M.D.; Peter A. DeFazio; Elizabeth Furse; Darlene Hooley; James
L. Oberstar; Joe Pitts; Diane Coleman, President, Not Dead Yet;
N. Gregory Hamilton, M.D., Physicians for Compassionate Care;
Prof. Herbert Hendin, M.D., New York Medical College; John A.
Kitzhaber, Governor, State of Oregon; Calvin H. Knowlton,
Ph.D., Pharmacist, American Pharmaceutical Association; Thomas
J. Marzen, General Counsel, National Legal Center for the
Medically Dependent & Disabled, Inc.; Edmund D. Pellegrino,
M.D., Center for Clinical Bioethics, Georgetown University
Medical Center; Dr. Douglas Pisano, Division of Pharmaceutical
Services, Massachusetts College of Pharmacy and Allied Health
Science; and Thomas R. Reardon, M.D., Chair, American Medical
Association.
On July 22, 1998, the Subcommittee ordered favorably
reported to the full Committee the bill H.R. 4006 as amended,
by a vote of 6-5. On August 4, 1998, the full Committee ordered
favorably reported the bill as amended to the full House by a
voice vote. H. Rept. 105-683, part 1. On September 14, 1998,
the Committee on Rules granted a modified open rule providing
for the consideration of H.R. 4006. No further action was taken
on the measure.
On March 11, 1997, Representative Ralph Hall introduced the
``Assisted Suicide Funding Restriction Act of 1997'' (H.R.
1003), which would clarify Federal law with respect to
restricting the use of Federal funds in support of assisted
suicide. The bill was referred to the Committee on Commerce;
and in addition to the Committees on Ways and Means, the
Judiciary, Education and the Workforce, Government Reform and
Oversight, Resources, and International Relations. On April 2,
1997, H.R. 1003 was referred to the Subcommittee. On April 8,
1997, H.R. 1003 was reported to the House, amended, by the
Committee on Commerce (H. Rept. 105-46, part 1) and the other
committees were discharged from further consideration. H.R.
1003 passed the House, as amended, by a vote of 398 yeas-16
nays and then passed the Senate on April 16, 1997, by a vote of
99 yeas-0 nays. H.R. 1003, was then signed into law on April
30, 1997, by the President (Public Law 105-12).
Child Custody Protection Act
On April 1, 1998, Representative Ileana Ros-Lehtinen
introduced the ``Child Custody Protection Act'' (H.R. 3682), a
bill to prohibit taking minors across State lines to avoid laws
requiring the involvement of parents in abortion decisions. On
May 21, 1998, the Subcommittee held a hearing on H.R. 3682.
Testimony was received from the following witnesses:
Representatives Ileana Ros-Lehtinen; James L. Oberstar; Nita
Lowey; Lincoln Diaz-Balart; Sheila Jackson Lee; Christopher H.
Smith; Joyce Farley of Dushore, Pennsylvania; Eileen Roberts,
Mothers Against Minors' Abortion; Reverend Katherine Hancock
Ragsdale, Episcopalian Priest; Professor Teresa Collett,
Professor of Law, South Texas College of Law; Professor Stephen
Presser, Raoul Berger Professor of Legal History, Northwestern
University School of Law; and Mr. Robert Graci, Office of the
Attorney General of Pennsylvania.
On June 11, 1998, the Subcommittee met in open session and
ordered reported the bill H.R. 3682, as amended, by a vote of
7-2. On June 17, and June 23, 1998, the full Committee met in
open session and ordered reported favorably the bill, H.R. 3682
with an amendment in the nature of a substitute, by a recorded
vote of 17-10. H. Rept. 105-605. H.R. 3682 passed the House on
July 15, 1998, by a vote of 276-150. The Senate Judiciary
Committee reported favorably an identical bill, S. 1645, but no
further action was taken on the measure.
Citizen Protection Act
On February 5, 1998, Representative Asa Hutchinson
introduced the ``Citizen Protection Act of 1998'' (H.R. 3168),
a bill to clarify that bail bond sureties and bounty hunters
are subject to both civil and criminal liability for violations
of Federal rights under existing Federal civil rights law. On
March 12, 1998, the Subcommittee held hearing. Witnesses
testifying before the Subcommittee were Representative Asa
Hutchinson; Sen. Robert Torricelli; Pamela Reed of Coventry,
Rhode Island; Jrae Mason of Jackson Heights, New York; Jerry
Gerig of Acworth, Georgia; Linda Childs of Plattsburg,
Missouri; Edwin Soltz, Attorney at Law, Overland Park, Kansas;
Leslie Hagin, National Association of Criminal Defense Lawyers;
Jerry Watson, Legal Counsel, National Association of Bail
Insurance Companies; Armando Roche, President, Professional
Bail Agents of the United States; Jonathan Drimmer, Attorney,
Washington, D.C.; Frank Slaton, Bounty Hunter, Newport News,
Virginia; and R. Gil Kerlikowske, Police Commissioner, Buffalo,
New York.
On April 30, 1998, the Subcommittee ordered favorably
reported H.R. 3168 to the full Committee, as amended, by voice
vote. However, the bill failed in full Committee on May 6,
1998, by a vote of 11-12.
Reform of Laws Governing Lobbying
On January 30, 1998, S. 758, ``The Lobbying Disclosure
Technical Amendments Act of 1997,'' which passed the Senate on
November 13, 1997, was referred to the Subcommittee. On March
18, 1998, the Committee on the Judiciary was discharged from
further action and the House passed S. 758 under suspension of
the rules by voice vote. S. 758 was signed into law as Public
Law 105-166 by the President on April 6, 1998.
Fair Housing
On April 17, 1997, the Subcommittee held a hearing on H.R.
589, the ``Fair Housing Reform and Freedom of Speech Act of
1997'' and related issues to examine concerns over recent
federal agency actions and court decisions involving the
interpretation of the Fair Housing Act Amendments of 1988. Some
of these actions and decisions had been criticized as failing
to carefully balance the need to protect against discrimination
in housing with the ability of local jurisdictions to enact
reasonable zoning restrictions and the rights of individuals in
communities to have a voice in the process by which site
decisions are made. H.R. 589, a bill to amend the Fair Housing
Act regarding local and State laws and regulations governing
residential care facilities, was introduced by Representatives
Brian Bilbray (R-CA) and Jane Harman (D-CA). On February 25,
1998, the Subcommittee ordered reported to the full Committee
by a vote of 7 yeas to 5 nays H.R. 3206, the Fair Housing
Amendments Act of 1998, a bill to amend the Fair Housing Act,
and for other purposes, which was also introduced by
Representatives Brian Bilbray (R-CA), Charles T. Canady (R-FL),
and Jane Harman (D-CA). No further action was taken on the
measure.
Racial and Gender Preferences--The Civil Rights Act
The ``Civil Rights Act of 1997'' was introduced in the
House of Representatives (H.R. 1909) on June 17, 1997, and in
the Senate (S. 950) on June 23, 1997. Subcommittee Chairman
Charles T. Canady was the lead sponsor of this legislation in
the House. H.R. 1909 would prohibit the federal government from
discriminating against or granting any preferences to any
person or group based in whole or in part on race, color,
ethnicity, or sex in federal employment or contracting or the
administration of any federal program. On June 26, 1997, the
Subcommittee held a hearing on H.R. 1909. Witnesses at the
hearing were Sen. Mitch McConnell; Del. Eleanor Holmes Norton;
Representatives Tom Campbell; Marge Roukema; Patsy Mink; Tillie
Fowler; Tom Lamprecht, President, Atlantic Coast
Communications; Susan Prager, Dean, UCLA School of Law; Michael
Cornelius, Vice President, Malcolm Drilling, Inc.; Karen
Narasaki, Executive Director, National Asian Pacific American
Legal Consortium; Gail Heriot, Professor, University of San
Diego School of Law; Randy Pech, Adarand Constructors, Inc.;
Marina Laverdy, Executive Director, Latin American Management
Association; Anita K. Blair, General Counsel, Independent
Women's Forum.
On July 9, 1997, the Subcommittee ordered H.R. 1909
favorably reported, without amendments, by a voice vote. On
November 6, 1997, the full Committee tabled the bill by a vote
of 17-9. No further legislative activity occurred regarding
H.R. 1909 during the 105th Congress.
Religious Freedom
The Subcommittee held a number of hearings on the issue of
the protection of religious freedom in the wake of the Boerne
v. Flores Supreme Court case striking down portions of the
Religious Freedom Restoration Act. The Subcommittee held the
first hearing on July 14, 1997. The witnesses at this hearing
were: Thomas C. Berg, Associate Professor of Law, Cumberland
Law School, Samford University; Mark E. Chopko, General
Counsel, U.S. Catholic Conference; Charles W. Colson,
President, Prison Fellowship Ministries; Douglas Laycock,
Associate Dean for Research, University of Texas Law School;
Marc D. Stern, Director, Legal Department, American Jewish
Congress; Jeff Sutton, Solicitor, State of Ohio; and Oliver
Thomas, Special Counsel for Religious and Civil Liberties,
National Council of Churches of Christ in the U.S.A.
On February 26, 1998, the Subcommittee held a second
hearing on ``The Need for Federal Protection of Religious
Freedom after Boerne v. Flores.'' The witnesses at this hearing
were: Zari Wigfall, Van Nuys, California; Reverend Richard
Hamlin, Evangelical Reformed Church, Tacoma, Washington;
Reverend Patrick J. Wilson III, Minister of Community
Development, Congress of Black Churches, Inc.; Reverend John
Wimberly, Jr., Western Presbyterian Church, Washington, D.C.;
Evelyn Smith, Chico, California; Jason Mesiti, Brookline, New
Hampshire; Suzanne Brown, Brookline, New Hampshire; Rabbi Chaim
Rubin, Los Angeles, California; Dr. Richard Robb, Ypsilanti,
Michigan; Reverend Richard Steel, Cedar Bayou Baptist Church,
Baytown, Texas; and Reverend Donald W. Brooks, Diocese of
Tulsa, Oklahoma.
On March 26, 1998, the Subcommittee held a third hearing on
``The Need for Federal Protection of Religious Freedom after
Boerne v. Flores, II.'' The witnesses at this hearing were:
Marc Stern, Director, Legal Department, American Jewish
Congress; Mark Chopko, General Counsel, U.S. Catholic
Conference; Dr. Dean Ahmed, American Muslim Council; Steve
McFarland, Director, Center for Law and Religious Freedom;
Isaac Jaroslawicz, Executive Director/Director of Legal
Affairs, The Adelph Institute; Barry Fisher, Former Chairman,
American Bar Association Subcommittee on Religious Freedom; and
Von Keetch, Counsel, The Church of Jesus Christ of Latter-day
Saints.
On June 16, 1998, the Subcommittee held a fourth hearing on
the issue of protecting religious freedom. The focus of the
hearing was H.R. 4019, the ``Religious Liberty Protection Act
of 1998.'' The witnesses at this hearing were: Professor
Douglas Laycock, Associate Dean for Research, University of
Texas Law School; Professor Thomas C. Berg, Associate Professor
of Law, Cumberland Law School, Samford University; Professor
Christopher L. Eisgruber, New York University School of Law;
Professor Marci Hamilton, Benjamin N. Cardozo School of Law,
Yeshiva University; Gene Schaerr, Attorney, Sidley & Austin,
Washington, DC; Marc Stern, Director, Legal Department,
American Jewish Congress; and Professor W. Cole Durham, Brigham
Young University Law School.
On July 14, 1998, the Subcommittee held a fifth hearing on
protecting religious freedom, again focusing on H.R. 4019, the
``Religious Liberty Protection Act of 1998.'' The witnesses at
this hearing were: Patrick Nolan, President, Justice
Fellowship; William Dodson, Director, Government Relations,
Southern Baptist Convention; Michael P. Farris, President, Home
School Legal Defense Association; Colby M. May, Senior Counsel,
Office of Governmental Affairs, American Center for Law and
Justice; Steven T. McFarland, Director, Center for Law &
Religious Freedom; Bruce D. Shoulson, Attorney at Law,
Lowenstein Sandler, P.C.; The Reverend Elenora Giddings Ivory,
Director, Washington Office, Presbyterian Church (U.S.A.);
Steven K. Green, J.D., Ph.D., Legal Director, Americans United
for Separation of Church and State; Professor Jamin Raskin,
Washington College of Law, American University; and Professor
Douglas Laycock, Associate Dean for Research, University of
Texas Law School.
On August 6, 1998, the Subcommittee ordered favorably
reported H.R. 4019 by voice vote, amended. No further action
was taken on the measure.
Partial-Birth Abortion Ban Act
On March 11, 1997, the Subcommittee held a joint oversight
hearing with the Senate Committee on the Judiciary on partial
birth abortion. H.R. 929, the ``Partial-Birth Abortion Ban Act
of 1997,'' which bans abortions in which a living baby is
partially vaginally delivered before killing the baby and
completing the delivery was held at full Committee and never
referred to the Subcommittee. On March 12, 1997, the full
Committee met in open session and ordered favorably reported
H.R. 929 with amendments by a vote of 20-11.
Because an agreement could not be reached on H.R. 929, H.R.
1122, the ``Partial-Birth Abortion Ban Act of 1997'' was
introduced by the Committee on Rules on March 19, 1997. H.R.
1122 is identical to H.R. 1833, the Partial-Birth Abortion Ban
Act of 1995, which was passed in the 104th Congress. On March
20, 1997, the House passed H.R. 1122 by a vote of 295-136. On
October 8, 1997, the House passed the Senate amended version of
H.R. 1122 by a vote of 296-132. The President vetoed the
Partial-Birth Abortion Ban Act on October 10, 1997.
On July 23, 1998, the House voted to override the
President's veto of H.R. 1122 by a vote of 296-132. The Senate
voted 64-36 on H.R. 1122 on September 18, 1998, failing to
override the President's veto (two-thirds vote required).
U.S. Commission on Civil Rights
The United States Commission on Civil Rights is designed to
serve as an independent, bipartisan, fact-finding agency of the
executive branch. The Commission was first established as a
temporary agency under the Civil Rights Act of 1957. The
authorization for the U.S. Commission on Civil Rights expired
on September 30, 1996.
On July 17, 1997, the Subcommittee held an oversight
hearing on the United State Commission on Civil Rights. This
hearing focused on repairing the Commission's management and
fiscal controls. Witnesses testifying were: Cornelia
Blanchette, Associate Director, Employment and Education
Issues, General Accounting Office; Mary Frances Berry,
Chairperson, U.S. Commission on Civil Rights; Carl Anderson,
Commissioner, U.S. Commission on Civil Rights; Wade Henderson,
Executive Director, Leadership Conference on Civil Rights; and
Bill Allen, former Chairman, U.S. Commission on Civil Rights.
On January 28, 1998, the Subcommittee chairman,
Representative Canady, introduced the ``Civil Rights Commission
Act of 1998,'' (H.R. 3117), a bill to authorize the United
States Commission on Civil Rights. On February 4, 1998, the
Subcommittee ordered favorably reported H.R. 3117 to the full
Committee by a voice vote. On March 4, 1998, the full Committee
ordered favorably reported H.R. 3117, amended, to the House by
a voice vote. H. Rept. 105-439. The bill passed the House, as
amended, under suspension of the rules on March 18, 1998. The
Senate took no further action on this bill.
Displaying the Ten Commandments
On March 3, 1997, Representative Robert B. Aderholt
introduced a resolution, H. Con. Res. 31, expressing the sense
of Congress regarding the display of the Ten Commandments by
Judge Roy S. Moore, a judge on the circuit court of the State
of Alabama. On March 3, 1997, H. Con. Res. 31 was referred to
the Committee and to the Committee on Transportation and
Infrastructure; and to the Subcommittee. H. Con. Res. 31 was
discharged from the Committees on March 4, 1997, and taken up
under suspension of the rules. The House agreed to the
resolution by a vote of 295-125. On March 6, 1997, H. Con. Res.
31 was referred to the Senate Committee on Governmental
Affairs.
Contributions of Martin Luther King, Jr.
On March 19, 1998, Representative J.C. Watts introduced a
resolution, H. Con. Res. 247, recognizing the contributions of
the Reverend Dr. Martin Luther King, Jr. to the civil society
of the United States and the world. H. Con Res. 247 was
referred to the Subcommittee on March 20, 1998. On April 1,
1998, H. Con. Res. 247 was called up by unanimous consent
discharging the Committee on the Judiciary and passed the House
by voice vote. H. Con. Res. 247 was referred to the Senate
Committee on the Judiciary on April 2, 1998.
Flag
On February 12, 1998, Representative Ken Bentsen introduced
a bill, H.R. 3216, which would amend the Act commonly known as
the ``Flag Code'' to add the Martin Luther King, Jr. holiday to
the list of days on which the flag should especially be
displayed. On March 11, 1998, H.R. 3216 was referred to the
Subcommittee on the Constitution. On October 21, 1998, the
Judiciary Committee was discharged by unanimous consent and the
bill passed the House by voice vote.
Emancipation of African Slaves in Danish West Indies
On June 25, 1998, Del. Donna M. Christian-Green introduced
a resolution, H. Res. 495, relating to the recognition of the
historical significance of the emancipation of African slaves
in what is now the United States Virgin Islands, and urging all
Virgin Islanders and Americans to maintain their unwavering
commitment to preserve, protect, and defend human rights and
freedom. On June 25, 1998, H. Res. 495 was referred to the
Subcommittee, was discharged from the Committee, and was agreed
to by the House by voice vote.
Constitutional Amendments
Term Limits
On January 22, 1997, the Subcommittee on the Constitution
held a hearing on proposing an amendment to the Constitution of
the United States limiting the terms of office for Members of
the Senate and the House of Representatives. The witnesses were
Representatives Joe Barton; Bill McCollum; John Dingell; Tillie
Fowler; Bill Frenzel, guest scholar, Governmental Studies
Program, Brookings Institution; Prof. John Hibbing, University
of Nebraska-Lincoln; Paul Jacob, Executive Director, U.S. Term
Limits; Thomas E. Mann, Director, Governmental Studies Program,
Brookings Institution; Cleta Deatherage Mitchell, Director and
General Counsel, Americans Back in Charge Foundation; Sen. Fred
Thompson; and George Will, nationally syndicated columnist and
television commentator.
On January 30, 1997, H.J. Res. 2 was held at the full
Committee. On February 4, 1997, H.J. Res. 2 was ordered to be
reported to the House without recommendation by a 19-12 vote,
and was reported to the House by the full Committee on February
6, 1997. H. Rept. 105-2. On February 12, 1997, the House failed
to approve H.J. Res. 2 by the necessary two-thirds vote, 217-
211.
Flag Protection
On April 30, 1997, the Subcommittee on the Constitution
held a hearing on H.J. Res. 54, a joint resolution proposing an
amendment to the Constitution of the United States authorizing
the Congress to prohibit the physical desecration of the flag
of the United States. The witnesses were Representative Gary
Ackerman; Patrick Brady, Chairman, Citizens Flag Alliance;
Norman Dorsen, Stokes Professor of Law, New York University
School of Law; Representative Martin Frost; Lawrence J. Korb,
Director, Center for Public Policy Education, Brookings
Institution; Alan G. Lance, Attorney General, State of Idaho;
Representative William O. Lipinski; Richard D. Parker,
Professor of Law, Harvard University; Roger Pilon, Founder and
Director, Center for Constitutional Studies, CATO Institute;
Maribeth Seely, Teacher, Sandystone Walpack School, Layton, NJ;
Carole Shields, President, People for the American Way;
Representatives John M. Shimkus; David E. Skaggs; Gerald B.H.
Solomon; Francis J. Sweeney, Financial Secretary, Steamfitters
Local Union 449, Pittsburgh, PA; Carol Van Kirk, Nebraska
American Legion Auxiliary; and Representative Robert K.
Zukowski, Wisconsin State Legislature.
On May 8, 1997, the Subcommittee on the Constitution met in
open session and held a markup on H.J. Res. 54, and ordered
H.J. Res. 54 reported favorably to the full Committee, without
amendment, by a voice vote. On May 14, 1997, the full Committee
met in open session and ordered H.J. Res. 54 reported favorably
to the full House, without amendment by a recorded vote of 20-
9. H. Rept. 105-121.
The House passed H.J. Res. 54 on June 12, 1997 by a vote of
310-114. Although reported by the Senate Committee on the
Judiciary June 24, 1998 (S. Rept. 105-298), the Senate did not
vote on the resolution.
Religious Freedom Amendment
In addition to numerous hearings in the 104th Congress, the
Subcommittee held a hearing on July 22, 1997 on H.J. Res. 78,
``Proposing an Amendment to the Constitution Restoring
Religious Freedom,'' designed to restore the right of religious
persons to acknowledge their beliefs, heritage, and traditions
on public property, to engage in voluntary school prayer, and
to have an equal opportunity to participate in government
programs, activities, or benefits. Witnesses testifying at the
hearing were: Representatives Ernest J. Istook, Jr.; Chet
Edwards; Tom Campbell; Walter Capps; Sanford Bishop; Craig
Parshall, Special Legal Counsel, Concerned Women for America;
Reverend Barry W. Lynn, Executive Director, Americans United
for Separation of Church and State; Jim Henderson, Senior
Counsel, American Center for Law and Justice; Dr. Derek H.
Davis, Director, J.M. Dawson Institute of Church-State Studies;
Prof. Mark Scarberry, Pepperdine University School of Law;
William Murray, Americans for School Prayer; Reverend Timothy
McDonald, Iconium Baptist Church; and Rabbi Aryeh Spero,
Congregational Rabbi.
On October 27, 1997, the Subcommittee met in open session
and reported favorably H.J. Res. 78, with an amendment in the
nature of a substitute offered by Mr. Hutchinson, by a vote of
8 to 4, a reporting quorum being present.
On March 4, 1998, the full Committee ordered favorably
reported H.J. Res. 78, as amended, by a recorded vote of 16-11.
H. Rept. 105-543. On June 4, 1998, the House failed to pass the
resolution by a vote of 224-203 (two-thirds vote required).
Tax Limitation Amendment
On March 11, 1997, Representative Joe Barton introduced the
first resolution proposing an amendment to the Constitution of
the United States with respect to tax limitation, H.J. Res. 62.
On March 18, 1997, the Subcommittee held a hearing on H.J. Res.
62. Witnesses testifying before the Subcommittee were
Representatives John Shadegg; Charles B. Rangel; James C.
Miller, Counsel, Citizens for a Sound Economy; Robert
Greenstein, Executive Director, Center for Budget and Policy
Priorities; Dr. Barry Poulson, University of Colorado; Dean
Samuel Thompson, University of Miami School of Law; Prof.
Michael Rappaport, University of San Diego School of Law; and
Daniel Mitchell, McKenna Senior Fellow, Heritage Foundation. On
March 18, 1997, the Subcommittee was discharged from further
consideration. On April 8, 1997, the full Committee ordered
H.J. Res. 62 favorably reported to the House, amended (H. Rept.
105-50). On April 15, 1997, H.J. Res. 62 was called up by the
House, as amended, and failed to pass by a vote of 233-190
(two-thirds vote required).
On February 26, 1998, Representative Joe Barton introduced
a related joint resolution proposing an amendment to the
Constitution of the United States with respect to tax
limitations, H.J. Res. 111, which was referred to the
Subcommittee on March 6, 1998. On April 22, 1998, the
resolution was considered by the House but failed passage by a
vote of 238-186 (two-thirds vote required).
Electoral College
On September 4, 1997, the Subcommittee held a hearing on
two resolutions, H.J. Res. 28, sponsored by Representative Ray
LaHood, and H.J. Res. 43, sponsored by Representative Tom
Campbell, amendments to the Constitution of the United States
that would abolish the electoral college and to provide for the
direct popular election of the President and the Vice President
of the United States. Witnesses testifying were Representative
Ray LaHood; Delegate Robert A. Underwood, Guam; Becky Cain,
President, League of Women Voters; Prof. Judith Best, State
University of New York-Cortland; Prof. Akhil Amar, Yale
University Law School; Curtis Gans, Director, Committee for the
Study of the American Electorate; and Walter Berns, Resident
Fellow, American Enterprise Institute. No further action was
taken on the measure.
Alternatives to Article V
On March 25, 1998, the Subcommittee held a hearing on H.J.
Res. 84, an amendment to the Constitution of the United States
to provide a procedure by which the States may propose
constitutional amendments. Witnesses testifying before the
Subcommittee were Representative Tom Bliley; George Allen,
former Governor of Virginia; Mickey Edwards, former Member of
Congress; Prof. Nelson Lund, acting Associate Dean of Academic
Affairs, George Mason University School of Law. No further
action was taken on the measure.
Campaign Spending
On May 14, 1998, Representative Tom DeLay introduced a
resolution, H.J. Res. 119, to the Constitution which would
limit campaign spending. On May 21, 1998, H.J. Res. 119 was
referred to the Subcommittee. The resolution was discharged
from the Committee on May 21, 1998. H.J. Res. 119 was
considered by the House June 10, 1998, and failed to pass June
11, 1998, by a vote of 29 yeas-345 nays-51 ``present.''
Oversight Activities
Impeachment
On November 9, 1998, the Subcommittee held an oversight
hearing on the ``Background and History of Impeachment,'' in
connection with the impeachment inquiry of President William
Jefferson Clinton, pursuant to H. Res. 581. Witnesses
testifying were: William Van Alstyne, Professor of Law, Duke
University School of Law; Charles J. Cooper, Esq., Cooper,
Carvin & Rosenthal; Stephen B. Presser, Raoul Berger Professor
of Legal History, Northwestern University School of Law; Gary
L. McDowell, Director of the Institute for U.S. Studies,
University of London; Jonathan R. Turley, Shapiro Professor of
Public Interest Law, The George Washington University Law
School; Hon. Griffin B. Bell, 72nd Attorney General of the
United States; John O. McGinnis, Professor of Law, Yeshiva
University, Cardozo School of Law; Forrest McDonald,
Distinguished University Research Professor, University of
Alabama; Richard D. Parker, Williams Professor of Law, Harvard
University Law School; John C. Harrison, Associate Professor of
Law, University of Virginia; Michael J. Gerhardt, Professor of
Law, College of William & Mary School of Law; Cass R. Sunstein,
Karl N. Llewellyn Professor of Jurisprudence, University of
Chicago School of Law; Laurence H. Tribe, Ralph S. Tyler, Jr.
Professor of Constitutional Law, Harvard University Law School;
Daniel H. Politt, Graham Kenan Professor of Law Emeritus,
University of North Carolina Law School; Matthew Holden, Henry
L. and Grace M. Doherty Professor of Government and Foreign
Affairs, University of Virginia; Susan Low Bloch, Professor of
Law, Georgetown University Law Center; Father Robert F. Drinan,
S.J., Professor of Law, Georgetown University Law Center; Jack
N. Rakove, Coe Professor of History and American Studies,
Stanford University; and Arthur M. Schlesinger, Jr., Professor
of History, City University of New York.
United States Commission on Civil Rights
On July 17, 1997, the Subcommittee held an oversight
hearing on the United States Commission on Civil Rights. This
hearing focused on repairing the Commission's management and
fiscal controls. Witnesses testifying were: Cornelia
Blanchette, Associate Director, Employment and Education
Issues, General Accounting Office; Mary Frances Berry,
Chairperson, U.S. Commission on Civil Rights; Carl Anderson,
Commissioner, U.S. Commission on Civil Rights; Wade Henderson,
Executive Director, Leadership Conference on Civil Rights; and
Bill Allen, former Chairman, U.S. Commission on Civil Rights.
Clinton Administration Adarand Review
On June 12, 1995, the Supreme Court decided Adarand
Constructors v. Pena, 115 S.Ct. 2097 (1995). There are dozens,
perhaps hundreds of federal programs that classify citizens on
the basis of race and treat them differently based on the color
of their skin. Prior to Adarand, constitutional challenges to
such laws triggered the so-called intermediate scrutiny test,
under which they would be sustained if the government could
show that they were substantially related to an important
government interest. See, e.g., Metro Broadcasting, Inc. v.
FCC, 497 U.S. 547 (1990). In Adarand, the court held for the
first time that federal racial classifications--like such
classifications enacted by state and local governments, see
Richmond v. J.A. Croson Co., 488 U.S. 469 (1989)--are subject
to the strict scrutiny test, which requires them to be narrowly
tailored to serve a compelling government interest.
Adarand thus marked a sea-change in the constitutional
limits on the ability of the federal government to classify
citizens based on skin color or ethnicity. On July 19, 1995,
President Clinton signed an executive order instructing the
Administration to undertake a comprehensive review of all
federal programs to determine what changes would be required by
Adarand.
That review, and the Administration's view of Adarand in
general, has been a focus of the Subcommittee's oversight of
the Civil Rights Division of the Department of Justice. On May
20, 1997, the Subcommittee held a hearing on the Civil Rights
Division. Witnesses testifying before the Subcommittee were
Isabelle Katz Pinzler, acting Assistant Attorney General of the
United States, Civil Rights Division; Michael Carvin, Attorney,
Cooper & Carvin; Prof. Pamela Karlon, University of Virginia
Law School; Wayne Flick, Attorney, Latham & Watkins; Prof.
Linda Gottfredson, University of Delaware; Weldon Latham,
Attorney, Shaw, Pittman, Potts & Trowbridge; and Lawrence
Stratton, Adjunct Professor, Georgetown University Law School.
On February 25, 1998, the Subcommittee held a second
hearing on the Division's past and present role in ending civil
rights discrimination. The witnesses at this hearing were Roger
Clegg, General Counsel, Center for Equal Opportunity; Martha
Davis, Legal Director, NOW Legal Defense and Education Fund;
Charles M. Hinton, Jr., City Attorney, Garland, Texas; Michael
Kennedy, General Counsel, Associated General Contractors of
America; Bill Lann Lee, Acting Assistant Attorney General, U.S.
Department of Justice; Stan Pottinger, Former Assistant
Attorney General for Civil Rights, U.S. Department of Justice;
Morton Rosenberg, American Law Division, Congressional Research
Service.
On July 17, 1998, the Subcommittee held a third hearing on
the Civil Rights Division of the U.S. Department of Justice.
This hearing focused on the Administration's new regulations
regarding racial preferences, as well as President Clinton's
Executive Order adding ``sexual orientation'' to the list of
protected classes entitled to affirmative action in federal
employment. Witnesses included Clint Bolick, Vice President and
Director of Litigation, Institute for Justice; Donald Devine,
Former Director, U.S. Office of Personnel Management; Wayne S.
Flick, Attorney, Latham & Watkins; Kim M. Keenan, Attorney,
Fair Employment Council of Greater Washington; Bill Lann Lee,
Acting Assistant Attorney General, Civil Rights Division,
United States Department of Justice; Shawna Smith, Executive
Director, National Fair Housing Alliance; and John Sullivan,
Associate Director, Project on Civil Rights and Public
Contracts, University of Maryland.
Respective Roles of Congress and Article III Courts
On January 29, 1998, the Subcommittee held a hearing
regarding Congress, the Courts and the Constitution. Witnesses
testifying before the Subcommittee were Representatives Ron
Lewis; John N. Hostettler; Barney Frank; Tom Campbell; Prof.
David P. Currie, Edward H. Levi, Distinguished Service
Professor, University of Chicago School of Law; Louis Fisher,
Senior Specialist in Separation of Powers, Congressional
Research Service; Prof. Neal Devins, College of William and
Mary School of Law; Prof. Matthew Franck, Radford University;
Prof. Neil Kinkopf, Case Western Reserve University Law School;
Nadine Strossen, President, American Civil Liberties Union; and
Prof. Robert L. Clinton, Southern Illinois University.
Private Property Rights
On September 23, 1997, the Subcommittee held an oversight
hearing regarding State Approaches to Protecting Private
Property Rights. Witnesses testifying before the Subcommittee
were Dean Saunders, former Florida State Representative;
Richard Russman, New Hampshire State Senator; Bob Turner, Texas
State Representative; Jane Jayman, Deputy General Counsel,
Florida League of Cities, Inc.; Chip Campsen, South Carolina
State Representative; Nancie Marzulla, President and Chief
Legal Counsel, Defenders of Property Rights; Prof. Harvey
Jacobs, Chair, Department of Urban and Regional Planning,
University of Wisconsin at Madison; and Prof. Steven J. Eagle,
George Mason University School of Law.
The First Amendment and Campaign Finance Reform
The Subcommittee held two oversight hearings regarding
campaign finance. The first hearing was held on February 27,
1997 titled ``Free Speech and Campaign Finance Reform.''
Witnesses testifying were Senator Mitch McConnell;
Representatives Richard Gephardt and Barney Frank; Ira Glasser,
Executive Director, American Civil Liberties Union; James Bopp,
Attorney, Bopp, Coleson & Bostrom; Lloyd N. Cutler, Attorney,
Wilmer, Cutler & Pickering; Prof. Burt Neuborne, New York
University School of Law; Brent Thompson, Executive Director,
Fair Government Foundation; Bradley Smith, CATO Institute; Gene
Karpinski, U.S. Public Interest Research Group; and Dave Mason,
fellow, The Heritage Foundation.
A second hearing was held on September 18, 1997, titled the
``First Amendment and Restrictions on Issue Advocacy.''
Witnesses testifying before the Subcommittee were James Buchen,
Senior Vice President, Wisconsin Manufacturers and Commerce;
Steve Merican, Attorney, Americans for Limited Terms; George
Dunst, Legal Counsel, State Elections Board of Wisconsin; James
Bopp, Jr., Attorney, National Right to Life and Wisconsin Right
to Life; Prof. Joel M. Gora, Dean, Brooklyn Law School and
General Counsel, New York Civil Liberties Union; Josh
Rosenkranz, Executive Director, Brennen Center for Justice, New
York University; Prof. Bradley A. Smith, Capital University Law
School; Norm Ornstein, American Enterprise Institute; and Don
Simon, Executive Vice President and General Counsel, Common
Cause.
Americans with Disabilities Act
On May 12, 1997, the Subcommittee held an oversight hearing
on the application of the Americans with Disabilities Act to
Medical Licensure and Judicial Officers. The Subcommittee heard
from the following witnesses: Ray Q. Baumgarner, Federation of
State Medical Boards and the State Medical Board of Ohio; Kay
Jaison, Psychiatrist, John Hopkins University; Susan Spaulding,
President, Federation of State Medical Boards; Prof. Chai
Feldblum, Georgetown University Law Center; Stan Ingram, Board
Attorney, Mississippi State Board of Medical Licensure; D.
Culver Smith, III, Attorney and former Chairman, Judicial
Nominating Commission, Fifteenth Judicial Circuit of Florida;
and Richard S. Brown, Judge, Wisconsin State Court of Appeals.