Spencer Abraham

Mr. ABRAHAM

Mr. ABRAHAM. Mr. President, I rise to express my support for passage of the National Invasive Species Act of 1996 [NISA]. NISA reauthorizes and amends the Nonindigenous Aquatic Nuisance Prevention and Control Act of 1990, a measure that passed with wide bipartisan support in response to concern over the potential impact of the Eurasian ruffe on the Great Lakes fishery [NANPCA]. NANPCA set forth a national program for preventing, researching, monitoring, and controlling infestations in U.S. waters of alien aquatic species. NISA continues these important measures, and includes some additional important provisions. NISA directs the Department of Transportation to develop voluntary guidelines, recordkeeping and reporting procedures, and sampling techniques to prevent the introduction and spread of nonindigenous species into U.S. waters. Since, the primary means of prevention are measures addressing the exchange of ballast water, this legislation will develop suggested direction for ballast exchange outside the U.S. exclusive economic zone and will authorize ecological and ballast discharge surveys to be conducted in highly susceptible waters. In the effort to develop other ways to repel these unwelcome intruders, the Interior and Transportation Secretaries will undertake a demonstration of technologies and practices which may prevent the introduction and spread of such species. Finally, if the spread of the zebra mussel has demonstrated anything, it has shown us how important regional coordination is to the control of invasive animals. Therefore, this act encourages the formation of regional panels to participate in activities to control the introduction of aquatic nuisance species. Mr. President, the impact of invasive species in the Great Lakes has been enormous. In 1950, the Great Lakes fishery nearly collapsed under its assault. Were it not for the constant efforts of the Great Lakes Fisheries Commission and the Great Lakes Environmental Research Laboratory, a similarly dire situation could occur. Michigan in particular has suffered greatly from the effects of nonindigenous plants and animals. In my State, the uncontrollable spread of the zebra mussel shut down the Monroe city water supply for 2 days in 1990 and contributed to sewage overflow in Lake St. Clair. Without steps to curb the introduction and spread of such invasive species, the Great Lakes region, and other coastal States, can expect similar incidents in the future. The spread of the zebra mussel, the sea lamprey, and other invaders have had a proven, negative impact on Great Lakes native species. Mr. President, I was happy to join as a cosponsor of legislation to control their spread, and I hope that the Senate can pass this reasonable, voluntary approach to curbing these species today.

Mr. ABRAHAM

Mr. ABRAHAM. Mr. President, with the 104th Congress coming to a close, this Senator wanted to come to the floor and express his disappointment at the failure of Congress to act on a couple of extremely important issues affecting the State of Michigan. One of the matters is a Medicare 50/50 enrollment composition rule waiver for the Wellness Plan of Detroit, MI. The Wellness Plan is a federally certified Medicaid health maintenance organization located in Detroit, MI. It currently has 150,000 enrollees--141,000 of whom are Medicaid, 12,000 commercial and 2,000 Medicare. Since 1993, the Wellness Plan has had a health care prepayment plan contract with Medicare. However, technical changes enacted by Congress effective January 1, 1996, unintentionally prevent the Wellness Plan from enrolling additional Medicare beneficiaries under the HCPP contract. So while the Wellness Plan now is positioned to become a full Medicare risk contractor, it currently is precluded from doing so due to the 50/ 50 Medicare/Medicaid enrollment composition rule. My colleague from Michigan, Senator Levin, and I introduced legislation recently to grant this waiver to the Wellness Plan. It is important to note that even the Health Care Financing Administration [HCFA] supports the Wellness Plan receiving this plan-specific 50/50 waiver. Because this legislation is noncontroversial, only affects the State of Michigan, and is supported by the entire State delegation, it was our hope that we could either include this measure in the omnibus appropriation bill the Senate passed this week. Regrettably, we were unable to include this language in the omnibus appropriation bill due to opposition from the Finance Committee to the addition of any Medicare or Medicaid provisions. While this Senator intends to pursue this initiative in the next Congress, it is truly disappointing that we were not allowed to enact this provision this year. This may appear to be a relatively minor, technical legislative issue, but it would have had a profound impact on the ability of Medicare beneficiaries in the State of Michigan to participate in this effective health care plan. Mr. President, the other matter has to do with HealthSource Saginaw hospital facility in Saginaw, MI. For the past 2 years, several of us in the Michigan delegation have been working diligently to provide a temporary extension of the moratorium that Congress had enacted and previously extended that prohibits the Department of Health and Human Services from considering HealthSource Saginaw to be an institution for mental diseases [IMD]. The most recent moratorium expired on December 31, 1995. We were able to get a moratorium extension in last year's reconciliation bill. Obviously, the President's veto of that bill dashed our hopes of solving this problem through that mechanism. In the interim, however, the State of Michigan has been forced to subsidize the losses incurred by HealthSource Saginaw since the expiration of the most recent moratorium. Reportedly, this has cost the State of Michigan $902,000 to date since January 1, 1996, it is estimated that amount will increase to $1.2 million by the end of the year. The fiscal year 1997 Labor-HHS-Education appropriation bill passed by the House of Representatives contained legislative language providing an extension of the moratorium through the year 2000 or until the first day of the first quarter in which Michigan's State plan would become effective under the new MediGrant program. It was our hope that such language would be included the omnibus appropriation bill or any continuing resolution that was sent to the President. Once again, the Finance Committee's opposition to any such Medicare or Medicaid provisions prevented us from succeeding in enacting this moratorium for HealthSource Saginaw this year. That is very unfortunate for the people of Saginaw, who risk losing an important health care facility in their area, and for the people of Michigan, who continue to have to subsidize this facility's operation because of the unwillingness of some in Congress to address this matter prior to adjournment. As with the waiver for the Wellness Plan, this Senator intends to continue to press for the moratorium for HealthSource Saginaw in the 105th Congress.

Mr. ABRAHAM

Mr. ABRAHAM. Finally, I have one more question for the distinguished Senator from Utah, regarding the changes made to eligibility of criminal aliens for waivers of deportation or exclusion under old section 212(c) of title 8, United States Code. The Anti-terrorism and Effective Death Penalty Act signed into law earlier this year, as well as the Senate Immigration bill, eliminated the possibility of 212(c) waivers for any criminal aliens who had committed any of several crimes that make aliens deportable under section 241 of title 8, United States Code. The conference report restores 212(c)-type waivers for criminal aliens who have not been convicted of aggravated felonies. Could you explain the purpose of this change?

Mr. ABRAHAM. Mr. President, I would like to ask the chairman of the Judiciary Committee to clarify a few changes made in the criminal alien provisions of the Senate immigration bill when the House and Senate conferees adopted the conference report on H.R. 2202, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. These provisions are included in this omnibus appropriations measure. I know Senator Hatch was deeply involved in the development of the section on criminal aliens, as a conferee on this legislation. First, I would like to ask about a change made to the exception to mandatory detention for criminal aliens. Section 303(a) of the conference report would add to the Immigration and Nationality Act a new section providing for mandatory detention of criminal aliens by the Attorney General prior to deportation or exclusion, which was already required under the Anti-terrorism and Effective Death Penalty Act signed into law earlier this year. That section in the conference report also includes a provision permitting release in extremely narrow circumstances--specifically, only for criminal aliens who qualify for the Witness Protection Program under section 3521 of title 18, United States Code, in the discretion of the Attorney General. I would like to ask the Senator if this section, new section 236(c)(2), requires that the criminal alien actually be admitted to the Witness Protection Program, under section 3521 of title 18, before being eligible for release?

Mr. ABRAHAM. Then, the release criteria regarding the criminal alien's safety to the community, the severity of the offense, and the criminal alien's likelihood of appearing for deportation proceedings are to be applied after the alien has been accepted to the witness protection program?

Mr. ABRAHAM. The Senate Immigration bill included a somewhat different set of criteria for the release of criminal aliens prior to deportation, permitting release only for aliens who are cooperating with law enforcement authorities or for purposes of national security, in the Attorney General's sole and unreviewable discretion. Could you explain the purpose of this change?

Mr. ABRAHAM

Mr. ABRAHAM. Mr. President, on November 16, 1996, the Nicholas G. Beram Veteran's Association will celebrate its 50th anniversary at a dinner event in Randolph, MA. I regret very much that I will not be able to join the members of this fine organization on their special occasion. However, I would like to take a few moments to share with the members of this body the association's half-century of history. The Nicholas G. Beram Veteran's Association was founded in 1946 by a small group of Syrian-Lebanese veterans from the Boston area. From 25 charter members this group has grown to over 250 veterans; its ranks comprised of individuals who have served their country with distinction in every military conflict since World War II. The Nicholas G. Beram Veteran's Association has made commendable efforts in honoring the service, not only of its own members, but of all Arab-American veterans. The deceased receive a special service at the wake, and their families are presented with an American flag. This year more than 450 graves of Arab-American veterans in 15 cemeteries in the Boston area were decorated. Additionally, the association maintains a long-established scholarship fund that provides annual $1,000 grants to up to nine students. As the grandson of Lebanese immigrants, I take special pride in the activities of the Nicholas G. Beram Veteran's Association. I salute its members for their five decades of commitment to their heritage and service in our Nation's Armed Forces. On behalf of all my Senate colleagues, I congratulate the Nicholas G. Beram Veteran's Association on what I am certain will be a successful anniversary celebration, and extend my best wishes for future years of continued prosperity.

Mr. ABRAHAM

Mr. ABRAHAM. Mr. President, I wish to assure the chairman that I am not opposed to the concept of user fees for national parks and wilderness areas. In this period of increased fiscal awareness, such an approach may help the Forest Service and Park Service maintain these important national treasures. I think it is important, however, that we clarify who will have to pay these recreation fees. As a case in point, the Sylvania Wilderness in Michigan's Upper Peninsula has been chosen as one of the recreation fee demonstration sites, and the Forest Service is presently taking comments on this proposed action. Located on the edge of the Sylvania Wilderness is a beautiful body of water known as Crooked Lake. When you look at a map of the area, you will note that approximately three-fourths of Crooked Lake's shoreline is within the Sylvania Wilderness. The remaining one-fourth, however, is privately held by about a dozen riparian owners, some of whom have lived on the lake for over 50 years. These owners have been good stewards of the land. As it stands now, if the Sylvania does institute a recreation fee, there is no guarantee that these people will be exempted from having to pay for their day-to-day activities. It seems to me that, if these owners and their day-use guests wish to use the lake for recreational activities such as swimming or fishing or boating, they should be exempted from paying the user fee. After all, these people lived on the lake and did all these things before the Sylvania was even designated a wilderness area. How can we justify suddenly imposing a tax on their use of the lake? If one of these families hosts a family reunion, for example, should they have to pay a recreation fee for each of the children who might wish to swim or wade or boat in the lake? And how can a small, family owned resort that has operated on this lake for decades justify having to charge each of its customers and additional $5 or $10 per person per visit? We need to assure these residents, their guests and day-use guests that they will not have to purchase a permit to continue their way of life.

Mr. ABRAHAM. Mr. President, I would be happy to yield to the distinguished Senator from Washington.

Mr. ABRAHAM. Mr. President, I wish to thank the distinguished subcommittee chairman and the ranking member for their consideration and all their hard work in support of this Nation's parks, national forests, and wildlife refugees. Mr. President, I yield the floor. maine acadian culture preservation commission

Mr. ABRAHAM. Mr. President, I would inform the subcommittee chairman that, if the residents wish to use the Sylvania for activities such as camping, hiking, or picnicking, paying the same fee as all other visitors sounds reasonable. That is clearly a different circumstance, and it seems logical that visiting other areas of the Sylvania would require purchasing the same permit as all other visitors. Now in fairness Mr. President, I do not know if the Forest Service had any intention of charging the Crooked Lake residents if the recreation fee were instituted. In fact, in conversations about this matter, Sylvania's Forest Service personnel indicated to me that exempting riparian owners, guests, and day-use guests from fees for using the lake seemed sensible and fair. I believe that there must be a commitment from the Forest Service and National Park Service to work to accommodate the distinctive interests of people living in and around this Nation's parks and refuge areas. I would ask the distinguished subcommittee chairman and ranking member if they believe that cases such as Crooked Lake's riparian owners merit such consideration.

Mr. ABRAHAM. Mr. President, I would like to engage the chairman in a brief colloquy to acknowledge the committee's support for initiatives under the National Institute of Justice [NIJ] account. In particular, I would like to address the NIJ's efforts to undertake a national study on correctional health care.

Mr. ABRAHAM. I thank the chairman. Mr. President, let me first acknowledge the chairman and the committee for their diligent efforts to produce a fiscal year 1997 Commerce, State, Justice, and Judiciary appropriations bill. Within the bill the committee has included language under the NIJ account that provides funding for a study on the potential health risks of soon-to-be-released inmates. This language is quite important to our Nation's criminal justice system and to nonprofit organizations devoted to assisting States with correctional health-care programs. For example, in my home State of Michigan, the National Commission on Correctional Health Care has been working with health and correctional officials to stem escalating costs and other problems associated with correctional health care. In light of the potential health risk associated with the nearly 11 million persons released each year from jails, prisons, and other correctional facilities, the National Commission is committed to assisting correctional and public health officials nationwide with correctional health-care concerns. In addition to efforts at NIJ, I am also aware that the Centers for Disease Control believes an initiative along these lines would be beneficial to its efforts to suppress the spread of infectious and highly communicable diseases within correctional settings. As we look to advance efforts to provide pertinent data relevant to the correctional system, we should encourage efforts like that of the National Commission, which effectively contributes to the development of information relevant to correctional and public health officials.

Mr. ABRAHAM

Mr. ABRAHAM. Mr. President, I rise to address the inadvertent omission of important report language relating to the transfer of the lighthouse at Whitefish Point, MI, from the Coast Guard Authorization Act of 1996. Built in 1849, the lighthouse at Whitefish Point was Lake Superior's first lighthouse. As I am sure my colleague from Michigan, and anyone else familiar with the perils of maritime transport on Lake Superior will tell you, in its 15 decades of operation the lighthouse has undoubtedly saved hundreds of lives. In response to the present need to justify budgets, the U.S. Coast Guard, working to meet its numerous national priorities, decided to permit the transfer of ownership to responsible parties. Several organizations stepped forward, and this legislation makes possible the transfer of this historical site to three interested parties: the Great Lakes Shipwreck Historical Society, the U.S. Fish and Wildlife Service, and the Michigan Audubon Society. Disagreements arose between the interested parties over the ability to construct or expand facilities at the site. As a conferee to the Coast Guard reauthorization, I developed a clarifying clause to be included in the conference report to accompany the bill to try and put this dispute to rest. This language represented an agreement between Representative Stupak and myself, and it struck a reasonable compromise between the concerned parties. Regrettably, this language was not included in the final report as we had come to expect. The aforementioned clause was as follows: ``Nothing in this section is to be interpreted as exempting development of the land conveyed under this section from applicable Federal, State or Local laws.'' Mr. President, this is a matter that is important to many people in the State of Michigan. It troubles me this language did not make it into the conference report.

Mr. ABRAHAM. Mr. President, I thank the distinguished subcommittee chairman and the ranking member for their consideration and all their hard work. Their help will ensure that transfer of this property takes place smoothly and it will allow the concerned organizations to focus their attention and resources toward preserving this rich historical site.

Mr. ABRAHAM

Mr. ABRAHAM. I would like to congratulate the Senator from Kentucky for his leadership in shepherding the Foreign Operations Assistance Appropriations bill to a successful resolution. This legislation deals with many matters of importance to the United States. The Senator deserves our gratitude for his untiring efforts to bring about final enactment of this bill. As the Senator from Kentucky knows, I have a particular interest in the American Schools and Hospitals Abroad or ASHA Program. Funding for this program falls under the Foreign Operations Assistance Appropriations bill. I am particularly concerned with the manner in which the bill's conference committee report resolves the question of ASHA funding. With the support of the Senator from Kentucky and the Senator from Vermont, my amendment to earmark $15 million for this program in fiscal year 1997 was included in the final version of the Senate bill. The House, however, did not include a similar provision in its bill. The conference committee also did not choose to include the earmark in the bill. But the conference committee did insert strongly worded language in the conference report which refers to ASHA funding. I understand that during conference deliberation on this matter the managers of both the House and Senate agreed to two specific principles. First, it was agreed to that AID should not phase out ASHA. Second, the managers insisted that the ASHA Program be funded at an amount at least equal to that in fiscal year 1996. I would like to ask the Chairman for clarification as to the actual funding level contemplated by this language. As the Senator from Kentucky knows, on September 6, 1996 AID formally notified Congress that grants made through ASHA in fiscal year 1996 would total $17.6 million. Based on this figure, it would be my interpretation of the report language that AID should award ASHA grants totalling at least $17.6 million for fiscal year 1997. In other words, in referring to the fiscal year 1996 funding level, the conference committee had in mind the ASHA funding level for the most recent year; it was not concerned with the fiscal year in which allocated funds were actually appropriated. Could the Senator from Kentucky tell me if my interpretation is correct?

Mr. ABRAHAM. I thank the Senator from Kentucky for that clarification.

Mr. ABRAHAM

Mr. ABRAHAM. Mr. President, I rise to discuss the Defense of Marriage Act and the Employment Non-Discrimination Act, voted on a few weeks ago. The former passed overwhelmingly in both the House and the Senate and the latter was rejected in the Senate and not voted on in the House. I voted for the Defense of Marriage Act and against the Employment Non-Discrimination Act. I would like to explain why I did so, and why I believe passage of DOMA and the failure of ENDA were proper. In enacting Federal legislation, I believe our first consideration should always be whether a Federal solution both legitimate and necessary. Legitimate; that is, under our Constitution's allocation of powers between the national government and the States. Necessary in the sense that the States cannot solve a particular problem on their own. Using these criteria, the Defense of Marriage Act is a limited, legitimate, and needed Federal intervention to protect the States' ability to set their own policies regarding single-sex marriage. By contrast, the Employment Non-Discrimination Act would have imposed a one-size-fits-all solution governing employment discrimination on the basis of sexual orientation without any clear and convincing showing that there is a national problem in this area. In addition, ENDA would have adopted measures far too sweeping even on the hypothesis that some national legislation was needed. Consider first the Defense of Marriage Act, which dealt with whether the States' have an obligation under Federal law to recognize single- sex marriages. Not, it is important to understand, whether States may recognize such marriages under their own laws. DOMA leaves the States entirely free to do so or not as they may please. In fact, it leaves the States entirely free, through their legislatures or their courts, to define marriage in any way they choose. DOMA deals only with the following issue: If State A decides to allow people of the same sex to marry, does Federal law require State B to treat these individuals as married as well if they decide to move to State B? DOMA answers that question in the negative: No, Federal law does not require State B to treat them as married just because State A chooses to do so. This is not merely a hypothetical question. In fact, the Supreme Court of Hawaii has already strongly hinted that in its view the Hawaii Constitution requires recognition of same-sex marriages, with a final ruling to that effect from a lower Hawaii court expected any day now. The extraterritorial effect such a ruling must receive is a quintessentially Federal matter. Indeed, even if Congress had done nothing, whether the other 49 States would have to treat individuals of the same sex married in Hawaii as married outside of Hawaii would still have been decided by Federal law. Although no State has yet recognized same sex marriages, all 50 States generally recognize marriages performed in another State, largely on account of Federal conflict of law rules and the Federal Full Faith and Credit Clause. Without any congressional legislation, whether the States would also be required to recognize same-sex marriages contracted out-of-state would likewise have turned on these Federal laws, and therefore, only Federal legislation can assure the States will be permitted to decide this issue for themselves. Additionally, some States, including my own home State of Michigan, have recently enacted laws explicitly refusing to recognize same-sex marriages contracted in other States. Whether these laws would be allowed to stand likewise would have been a Federal issue even in the absence of any action by Congress. The courts, including, ultimately, the U.S. Supreme Court, would have either enforced these exceptions as being consistent with the Federal Constitution's Full Faith and Credit Clause or would have struck them down pursuant to that Clause. Thus it is very hard to see how congressional action to make clear that other States need not recognize a same-sex marriage simply because it was recognized in Hawaii can possibly be cast as an illegitimate intervention by the national government. The national government necessarily has to choose sides, either to say that the Hawaii view shall prevail in all 50 States, or that it need not do so, or that it shall do so in some instances. How it chooses sides is the only open question. The Federal government will either resolve this issue by means of a statute adopted by a Congress elected by the people of the States and signed into law by the popularly elected President or by means of a U.S. Supreme Court decision applying existing Federal conflict-of-law principles and the Federal Constitution's Full Faith and Credit clause as best it can. But in any event, the Federal Government will be resolving what effect these marriages will have outside of Hawaii. That being the case, it is clear to me that there is no reason to prefer that this decision be made by the Federal courts than by the democratically elected components of the Federal Government. Rather, it is better for this choice to be made by the democratically elected branches--that is, by Congress and the President. Having established that the decision at issue--the extraterritorial effects of Hawaii's laws--is inevitably one that must be made by the national Government, and one that should be made by that Government's elected rather than life-tenured officials, the question that remains to be decided is the bottom line: should other States be required by Federal law to recognize single-sex marriages if one State decides to do so, or shouldn't they? It is clear to me that the choice most consistent with principles of federalism is to specify that the other 49 States will not be required to follow Hawaii's lead. That again is what DOMA does. My colleagues who have argued that federalism counsels against congressional action are missing the obvious. The virtues of a federalist system--permitting experimentation among the States, and recognizing differing values and standards in different communities-- are plainly best served by making clear that the other States need not recognize same-sex marriages entered into out of State. It is Congress's failure to act to make this clear that could well result in significant Federal intrusion into this State matter by allowing the Federal courts to impose Hawaii's answer on the other 49 States. By enacting DOMA, this Congress left each of these States free to decide for themselves whether to recognize such marriages or not. Some DOMA opponents argue that such a congressional resolution of this matter is unconstitutional because it violates the Full Faith and Credit Clause. They are wrong. That Clause expressly permits the Congress to specify whether and to what extent particular State statutes and judgments shall receive extra-territorial effect. The Full Faith and Credit Clause states, in full: Full Faith and Credit shall be given in each State to the public Acts, Records, and Judicial Proceedings of every other State; And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof. The Full Faith and Credit Clause explicitly gives this Congress the authority to prescribe the ``effect'' of a State's public acts, records, and judgments. As Prof. Michael McConnell of the University of Chicago Law School, has persuasively argued, this includes the authority to prescribe no extraterritorial effect to a particular category of a State's public acts, records, and judgments. This also serves what is often said is the purpose of the Full Faith and Credit Clause--above all--to preserve harmony among the States. By allowing the States to make their own judgments about same-sex marriages, DOMA does just that. Indeed, the courts have found that the States have some retained authority along these lines under the public policy exception to the Full Faith and Credit Clause--even in the absence of an Act of Congress. Congress surely has the power to reinforce the court-created public policy exception to the Full Faith And Credit Clause. And that is all the Defense of Marriage Act does, by providing that: No State, territory, or possession shall be required to give effect to any public act, record, or judicial proceeding of another State, territory, or possession respecting a relationship between persons of the same sex that is treated as a marriage. In short, DOMA does not prohibit States from adopting laws permitting same-sex marriages; it does not require them to do so. Hawaii remains entirely free to continue on its own path, as does Michigan. The only effect DOMA will have on the States is to prevent what the courts might otherwise find to be the possibly constitutionally-compelled result that every State recognize same-sex marriages contracted in another State, where such unions are permitted. By simply stating that the Federal Full Faith and Credit Clause does not require the States to recognize same-sex marriages, DOMA leaves the States free to recognize them or not recognize them as they see fit. This is completely different from the Employment Non-Discrimination Act, to which I will now turn. Right now, the States are free to have or not have their own laws prohibiting discrimination in employment on the basis of sexual orientation and their own means of enforcing these laws. Nine States have them, forty-one do not. If this Congress had adopted ENDA, we would have ended State experimentation and forced one uniform solution--punitive damages and all--onto every State. Rejecting ENDA is the choice that leaves the States free to adopt whatever policies they choose. Thus, from a federalism perspective, ENDA was an intrusion on the States' ability to make choices, whereas DOMA was a device for facilitating State-choice. That is not to say that ENDA would necessarily be wrong for that reason. Sometimes national solutions are precisely what are called for to address a problem the States cannot solve on their own. But that is not the case here. The need for a national law such as ENDA has yet to be demonstrated. I am not suggesting that there are not problems--I don't know if there are. But neither do my colleagues. There have been no hearings, no testimony, no reports on the reason for national legislation on this matter. According to estimates published in Harpers magazine and the Personnel Journal, the average annual income for gays and lesbians is about $36,000, compared to about $18,000 for the population at large. The average household income for gays and lesbians is estimated at $47,000, also substantially above the average household income for the general population. The study reported on in the Personnel Journal also found that gays and lesbians are more than twice as likely to hold managerial or professional positions than heterosexuals. Does this prove that there is no discrimination on the basis of sexual orientation in the work force? Of course not. There may be a serious problem here--but we just don't know. Moreover, if there is, a number of States have adopted antidiscrimination laws. I would like to know what gave rise to them, what they provide, how they compare to what is being proposed here, and if they are leading to less employment discrimination based on sexual orientation in the States that have them than exists in the States that do not. It also ought to be noted that the Employment Non-Discrimination Act would have effected a major change in this country's civil rights laws. For the first time, a characteristic strongly related to an individual's behavior would effectively have the legal status of a characteristic like an individual's race or gender. This is an enormous and unprecedented expansion of the civil rights laws. Arguing against gays in the military, Colin Powell said: Skin color is a benign, non-behavioral characteristic. Sexual orientation is perhaps the most profound of human behavioral characteristics. Comparison of the two is a convenient but invalid argument. We need to think much harder than we have about this before embarking on a change of this magnitude. Finally, even if I were persuaded that we needed a national law on this matter, ENDA went much, much too far. In particular, it would have forced organizations charged with the care of children to hire, retain, and promote individuals without regard to sexual orientation. It would have imposed the same obligation on many religious organizations, irrespective of their religious convictions. I think even many who believe we should pass some kind of law in this area would rightly be hesitant to cover entities of these types with the first national law adopted on this subject. First, as to organizations that work with children. ENDA would have forbidden discrimination in employment on the basis of sexual orientation by any employer with 15 or more employees. This would include not only large corporations that sell their products to adults, but also public schools, private schools, day camps, child care and foster care centers, baby sitting agencies, and a large number of other institutions. There is not even a weak argument to the contrary since despite the protestations of the bill's proponents, ENDA contained no private organization exception. ENDA also would have applied to the hiring decisions of the Boy Scouts, the Girl Scouts, and other, similarly-situated organizations. Proponents of the act claimed otherwise, relying on ENDA's exception for bona fide private membership clubs. The Boy Scouts and the Girl Scouts, however, are extremely unlikely to qualify--the same private club language in other statutes has generally been interpreted to mean truly small and exclusive societies. Even some exclusive, members-only clubs with secret membership committees have been sued by the EEOC as falling outside the exception. The only contrary authority is a Federal court decision whose holding is that the Boy Scouts do not constitute a place of public accommodation under Title II of the Civil Rights act--in other words, the cited case really stands only for the proposition that the Boy Scouts are not a restaurant. In addition to covering a variety of children's organizations, the Act would also have applied to a large number of religious organizations. While the bill appeared to include an exception for them, it defined the term ``religious organization'' so narrowly as to exclude a wide array of religious organizations and activities. ``Religious Organization'' was defined to mean only: A religious corporation, association or society; or A religious school if the school is owned, controlled, managed, or supported by a religious corporation, association or society--or the school's curriculum is directed toward the propagation of a particular religion.'' Even then--the religious organization's for-profit activities would have been subject to the bill's prohibitions. Under this definition, the hiring decisions of religious radio stations and bookstores--which are not religious corporations-- religious pre-schools--which are not religious schools--and religiously affiliated colleges that are not divinity schools and are not controlled or supported by a religious corporation would have been covered. Even churches' and religious schools' decisions to hire individuals to sell books or church or school memorabilia would have been covered if those activities were conducted for profit. This, of course, on top of the fact that as I explained earlier, the hiring decisions of non-religious entities involving kindergarten teachers, camp counsellors, Little League coaches, Day Care Centers, or Boys Town counsellors would have been covered by the Act. Given the novelty of any kind of prohibition of discrimination on the basis of sexual orientation, it seems to me that the bill's coverage surely should have been significantly narrower. Finally, even if these problems could have been solved, there is a serious risk that covered entities would be subject to harassing lawsuits under this bill by any individual dissatisfied with an employment decision. Since sexual orientation isn't subject to easy proof, being a state of mind--unlike gender or race--ENDA would have allowed anyone with a job where 15 or more people are employed--or applying for such a job--to sue for perceived employment discrimination on the basis of sexual orientation. Even employers found innocent of either knowing or caring what an employee's sexual orientation is, would potentially be saddled with expensive and time-consuming lawsuits defending themselves. Thus--irrespective of its necessity--the specific legislation at issue was overly-broad in scope and virtually impossible to apply as intended.

Mr. ABRAHAM

Mr. ABRAHAM. Mr. President, I would like to take this opportunity to recognize the exceptional dedication of Michigan's Upper Peninsula firefighters. These courageous men and women joined forces with firefighters from across the Nation to battle this summer's rampant fires in the West. Countless acres of this country's precious wilderness, as well as untold millions in public and private property, have been saved due to their selfless efforts. Each of these individuals served their State and country proudly, whether administratively or on the front lines. These brave professionals stand ready to protect this country in times of natural disaster and for this, they have earned our respect and admiration. I am privileged to recognize the following Upper Peninsula residents for their work fighting fires in the Western United States: Kevin Doran, Bill Bowman, Sandy Pilon, Orlando Sutton, Mike Miller, Don Howlett, Dave Worel, Jane Wright, Roger Humpula, Duane Puro, Judy Moore, Ed Wenger, Jenny Piggott, Terry Papple, Terry Arnold, Paul Pedersen, Don Mikel, Ralph Colegrove, Jerry Terrain, Chuck Oslund, Phil Kinney, Vern St. John, Kevin Pine, Doug Heym, Ty Teets, Joan Charlobois, Jon Reattoir, Alex Jahn, Nathan McNett, Mary Clement, Les Henry, Ruth Ann Trudell, Tom Vanlerberghe, Kerry Doyle, Jon Luepke, Louise Congdon, Rick Litzner, Todd Scotegraaf,John Pavkovich, John Ochman, Lori Keen, Eric Johnston, Dennis Neitzke, Lee Ann Loupe, Rodney Mobley, Ollie Todd, Sharon Makosky, Ernest Hart, Cecilia Seesholtz, Jim Wethy. Dave Worel, Karen Waalen, Jeff Stromberg, Allen Duszynski, Mike Lanasa, Brenda Madden, Jim Flores, Al Saberniak, Marvin June, Joe Carrick, John Niskanen, Bret Niemi, John Worden, Nichols Wall, Paul Dashner, Pamela Harmann, Paul Cichy, Brunkdoreen Baron, David Trewartha, Mike Syracuse, Tom Strietzel, Aaron Pouylous, Larry Velmar, Jim Dehut, Eric Green Pete Allen, Jason Allen, Eugene Loonsfood, Charles Gauthier, Nathan Avedisian, Robert Pairolero, John Strasser, Bill Genschow, Allen Mackey, John Holmes, Paul Blettner, E.B. Fitzbatrick, Don Palmer, Cindy Miller. John Kempson, Ben Mireki, Nathan Lainonen, Loren Kariainen, Joanne Thurber, Bobby Joe, Justin Borseth, Allan Wacker, Dan Ryskey, Greg Dove, Mike Dakota, John Lee, Paul Daniels, Brian Blettner, John Tanner, Dave Pickford, Gerry Gustafson, Mary Rasmussen, Lee Rouse, Dale Gordon, Jake Maki, Matt Lindquist, Deb Korich, Bill Reynolds, Jean Perkins, Wayne Petterson, Kay Gibson, Floyd Meyer, Phil Doepke, Steve Chad, Greg Rozeboom, Rob Smith, Robert Garrison Jr., Heather Wettenkamp, Gayle Sironen, Sharon Brunk, Cliff Johns, Robert Wagner, Del Platzke, Jerry Hoffman, Linda Kramer, Chuck Mowitt, Mark Adamson, Shawn Green, Mike Jacobson, Clayton Lord, Joe Cronkright, Adam Hickson, Carmen Allen, Mike Jarvi, Daryl Johnson, Jack Applekamp, Gary Dinkel, Rick McVey, Jay Wittak, Robert Garrison Sr., Joel Enking. Wayne Young, Mark Douglas, Donald Kuhr, Randy Bruntjens, John Mattila, Ellis Sutfin, Pat Halefrisch, Debbie Begalle, Terry Popour, Richard Annen, Gerald Mohlman, Chester Sartori, John Krzycki, Robert Burnham, Craig Farrier, John Johnston, Charles Vallier, Robert Ziel, Beverly Current, Jeffery Stampely, Gary Willman, Daniel Laux, Jeffery West, Otto Jacob, Kay Fisher, Jason Tokar, Paul Pierce, Brad Johnson, Jack Maurer, Jim Haapapuro, Byron Sailor, John Turunen, Scott Seberd, Michael Slade, Daniel McNamee, Patrick Olson, Steve Adkins, Pete Davis, Debra Huff, Richard Berkheiser, Roger Grinsteiner, Russ MacDonald, Amy Dover, Paul Gaberdiel, Jeff Noble, Chuck Lanning, Brian Mulzer.

Mr. ABRAHAM

Mr. ABRAHAM. Mr. President, I would like to ask the Chairman of the Judiciary Committee a few questions to clarify the changes made in the asylum provisions of the Senate immigration bill when the House and Senate conferees adopted the conference report on H.R. 2202, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. These provisions are included in this omnibus appropriations measure. Senator Hatch was a conferee on this legislation and was deeply involved in the development of this provision. Section 604 of the conference report would add to the Immigration and Nationality Act a new section providing that an alien may not apply for asylum unless he or she demonstrates by clear and convincing evidence that the application has been filed within 1 year after the date of the alien's arrival in the United States. That section also includes two important exceptions--one for changed circumstances that materially affect the applicant's eligibility for asylum, and the other relating to the delay in filing an application. Would the Chairman explain the meaning of these exceptions?

Mr. ABRAHAM. Would you say that the intent in the changed circumstances exception is to cover a broad range of circumstances that may have changed and that affect the applicant's ability to obtain asylum?

Mr. ABRAHAM. It is my understanding that the second exception, for extraordinary circumstances, relates to legitimate reasons excusing the alien's failure to meet the 1-year deadline. Is that the case?

Mr. ABRAHAM. If the time limit and the exceptions you have discussed do not provide sufficient protection to aliens with bona fide claims of asylum, I will be prepared to work with my colleagues to address that problem. Is my understanding correct that you too will pay close attention to how this provision is interpreted?

Mr. ABRAHAM. Thank you. I would likewise thank the Chairman of the Judiciary Committee for his diligent efforts on this issue in conference and his explanation of the conference report's provisions.

Mr. ABRAHAM

Mr. ABRAHAM. Mr. President, I rise in support of the illegal immigration reform bill as it has emerged from conference. At the outset, I want to applaud the fact that, after considerable debate, this Congress has chosen to separate the issues of illegal and legal immigration. We should not lump legal immigrants, who play by the rules, together with illegal immigrants, who break them. Moreover, in my judgment, the best way to preserve our tradition of legal immigration is to address the public's concerns about illegal immigration. That is part of the reason why I support the bill before us today. I would also like to applaud the changes recently made to the bill's income requirements for persons who wish to sponsor an immigrant. As reported out of conference, section 551 of the bill would have required individuals to earn at least 140 percent of the poverty line to sponsor a spouse or minor child, and to earn at least 200 percent of the poverty line to sponsor any other immigrant--for example, a parent. The effect of this provision would have been to block many middle-class Americans from sponsoring their close relatives. Section 551 has been revised, however, to provide that an individual who wishes to sponsor an immigrant must either earn at least 125 percent of the poverty line or obtain a cosigner who earns that much. I strongly support this change, as the revised section 551 arguably provides sponsors with more flexibility than does current law. Nevertheless, I would like to outline a number of my concerns with this bill. To begin with, Mr. President, I am concerned about the verification pilot projects included in this bill. These projects constitute the first steps toward a National Identification System. This legislation mandates three pilot projects of 4-year duration. Now, as it stands these tentative steps are reversible. We have basically postponed the day of reckoning on this issue for 4 years. But this is an issue that I believe does not warrant field study. Americans should not be subjected to a national identification system, period. Any such system will put people's jobs, property, and rights at risk of bureaucratic incompetence and abuse for no good reason. We can solve our problems without such a system, and that is what we must do to preserve our traditions of individual liberty. In addition, I am concerned about this legislation's provisions on federalized documents. The bill would bar Federal agencies from accepting birth certificates and drivers' licenses that do not meet new Federal standards. This will force States to conform to Federal standards in issuing these documents, because States' citizens will want to be able to use them for Federal purposes. It is an intrusion into an area properly subject to State control and another step toward a national identification system. It is unnecessary and it should not be undertaken. Mr. President, I also have reservations concerning the bill's provisions on the deportability of criminal aliens. If these provisions are adopted, they will significantly weaken many of the important reforms this Congress adopted last session in the Anti-terrorism and Effective Death Penalty Act to facilitate deportation of criminal aliens. As I have made clear throughout consideration of the immigration bill, I draw a sharp distinction between immigrants who come to this country to make better lives for themselves and those who come to break our laws and prey upon our citizens. I have made no secret of my strong concerns about the conference report's repeal of important provision this Congress enacted into law in the Anti-terrorism Act last spring. Along with my colleague Senator D'Amato, I have sent a letter to the immigration conferees outlining these concerns, which I would like briefly to mention here. First the draft conference report unconditionally restores immigration judges' ability to grant so-called hardship or section 212(c) waivers to large categories of criminals who have committed serious felonies. When Congress enacted section 212(c) in 1952 as part of the Immigration and Nationality Act, it made clear that it was to apply only to those cases where extenuating circumstances clearly require such action.'' Unfortunately, unelected and irresponsible immigration judges have completely and permanently ended deportation proceedings against thousands of convicted felons under this provision. The Anti-terrorism Act corrected this outrage by barring individuals from using section 212(c) if they had been convicted of aggravated felonies, firearms, and narcotics crimes, or repeated serious offenses. But now the conference report would restore these waivers for all criminal aliens other than aggravated felons. Repeat offenders, illegal firearms and narcotics dealers and, most shocking of all, terrorists, all would now be able to have deportation proceedings against themselves terminated. And, even in those cases when a waiver is not granted, the request itself will delay the deportation process and make it harder to detain criminal aliens pending deportation. That means that more criminal aliens will be released and will never be found again to be deported. Why has this pernicious invitation to immigration judges to abuse their power been restored? I have heard no explanation. Yet, if it is because my colleagues now believe that these judges can be trusted not to abuse their discretion recent experience shows otherwise. Even now, with section 212(c) eliminated by the Anti-terrorism Act, some immigration judges are granting the relief for criminal aliens who are in exclusion proceedings. This plainly defies the clear meaning of the statute. The Anti- terrorism Act applies to aliens who are deportable for having committed certain crimes. It contains no reference to any proceedings in which the immigrant might be engaged, be they exclusion or deportation proceedings. The choice of proceedings is irrelevant. It is the commission of proscribed felonies on American soil that dictates the criminal alien's removal. Fortunately, by establishing a unified system for removing aliens who do not comply with our laws, the conference report eliminates the availability of this particular misconstruction. But its restoration to the same immigration judges who devised this misconstruction of the authority to grant these waivers to large classes of criminals is simply incomprehensible. Removal of these felons will be made even more difficult under the conference report because the bill significantly weakens the Anti- terrorism Act's requirements relating to the detention of criminal aliens. Under that act the Attorney General was required to detain all criminal aliens who have committed certain serious crimes, pending deportation. The conference report would allow the Attorney General to release large categories of these individuals, on certifying that insufficient space exists to detain them, for 2 full years. Again, the question is why? The Justice Department has not stated in any formal communication to Congress that there is currently or will be in the near future insufficient detention space to detain these and other dangerous individuals. Indeed, the Department not only failed to volunteer that it had any such problem, it made no such statement even in response to a letter asking for any concerns the Department might have about the Anti-terrorism Act's criminal aliens provisions. The closest the Department came was to suggest that it was theoretically possible that such a shortage might develop at some point. Such hypothetical concerns are no reason at all to grant the Attorney General the authority to release thousands of convicted criminals back into the population, to prey on our people and perhaps never be caught again, let alone deported. If the Attorney General needs that authority because the Immigration and Naturalization Service projects an immediate shortage of detention space, the Department knows how to ask for it. If it did, we could then assess the plausibility of the projection, as well as whether the matter could be better addressed by providing additional detention space instead. We also could ask why no request for additional space had been forthcoming. The conference report's decision to grant this unilateral release authority without even the justification that the Department, albeit late in the day, has said it needs to have that authority on account of an imminent shortage, is frankly incomprehensible to me. As I believe is clear, Mr. President, I have some rather serious problems with this legislation. However, we face a more serious problem, for which this legislation, even with its flaws, is needed. I am speaking, of course, of the problem of illegal immigration. This bill contains a number of provisions that I believe are crucial to our fight to bring illegal immigration under control. For example, the bill includes the Kyl-Abraham amendment adopted in committee. This amendment will increase by 1,000 the number of Border Patrol agents in each of the next 5 fiscal years (1997-2001). The bill also would sharply increase penalties for alien smuggling and document fraud. In addition, the bill includes a revised form of an Abraham amendment to impose stiff sanctions on visa-overstayers, who make up fully one- half of the illegal aliens in this country. I regret that the ``good cause'' exception in my amendment was omitted from final bill. But visa-overstayers must be punished like anyone else who breaks the rules. Finally, this legislation makes those who sponsor aliens into the country legally responsible for their support, and allows the Government to collect reimbursement for any welfare moneys spent. In sum, Mr. President, I am concerned that identification provisions in this legislation are leading us on a path away from America's well- worn road of personal liberty toward a bureaucratic nightmare. And I am worried that this bill will allow too many criminals to stay in this country. But we are in the midst of a serious conflict. We cannot allow law- breakers into our country. And that is exactly what an illegal immigrant is: someone who willingly and knowingly flouts our laws. This legislation makes needed reforms to our immigration system so that we may deal more efficiently with these lawbreakers. To my mind this is an important step toward a more fair and open immigration system.