John Ashcroft

Mr. ASHCROFT

Mr. ASHCROFT. Mr. President, with the permission of the Senator from Alabama, I yield myself as much time as I might consume in opposition to the nomination.

Mr. ASHCROFT. Mr. President, the Ninth Circuit Court of Appeals is in serious need of improvement. The court is the epicenter of judicial activism in this country. The Ninth Circuit's unique blend of distortion of text, novel innovation, and disregard for precedent caused it to be reversed by the U.S. Supreme Court 27 out of 28 cases in the term before last. That is something very, very serious. When this court's cases were considered by the U.S. Supreme Court in the term before last, 27 out of 28 decisions were considered to be wrong. If the people of this country found out that 27 out of 28 decisions of the Senate were considered to be wrong, Senators would not last very long. No tolerance would be provided for virtually any institution that was wrong that much of the time. The Ninth Circuit Court's record improved last year, but barely. According to the National Law Journal, the court was reversed in whole or in part in 14 out of 17 cases last year. Over the last 2 years, that amounts to a reversal rate of 90 percent. In the last 2 terms, 9 out of 10 times the Ninth Circuit has been wrong. The Ninth Circuit's disastrous record before the Supreme Court has not been lost on the Justices of the Supreme Court. In a letter sent last month supporting a breakup of the Ninth Circuit, Justice Scalia cited the circuit's ``notoriously poor record on appeal.'' Justice Scalia explained, ``A disproportionate number of cases from the Ninth Circuit are regularly taken by this court for review, and a disproportionate number reversed.'' The Ninth Circuit's abysmal record cannot be dismissed or minimized because the Supreme Court is there to correct the Ninth Circuit's mistakes. In a typical year, the Ninth Circuit disposes of over 8,500 cases. In about 10 percent of those cases, over 850 cases, the losing party seeks to have a review in the Supreme Court. Although appeals from the Ninth Circuit occupy a disproportionate share of the docket, the Supreme Court grants only between 20 and 30 petitions from the Ninth Circuit in a given year. If they are reversed 90 percent of the time because they are wrong in those cases that have been accepted, I do not know what the error rate would be in the other 8,500 cases that they litigate or consider on appeal, or what would be the error rate in the 850 cases that are sent, begging the Supreme Court to review the cases. But it is very likely, in my judgment, if their error rate is 90 percent in those cases that are accepted by the Supreme Court, that there are a lot of other individuals simply denied justice because of the extremely poor quality of the Ninth Circuit Court of Appeals. This really places upon those of us in the U.S. Senate a very serious responsibility, a responsibility of seeking to improve the quality of justice that people who live in the Ninth Circuit receive. Accordingly, of the 8,500 cases decided by the Ninth Circuit in a year, only 20 or 30, or about three-tenths of 1 percent, are reviewed by the Supreme Court. So, if there are errors in the other cases, they are just going to remain there. Only three-tenths of 1 percent of the cases decided by the court are reviewed by the Supreme Court. So if we say it is OK for that circuit to be full of error, it is OK for that circuit to be absent the quality and the kind of correctness that is appropriate in the law, if we predicate our approval on the basis that there can be an appeal, the truth of the matter is, the Supreme Court takes only about three-tenths of 1 percent of the cases for appeal. The Supreme Court, moreover, selects cases for review predominantly to resolve splits among the circuits, not to correct the most egregious errors. So some of the cases the Supreme Court does not even take may be more blatant injustices than the ones that the Supreme Court does take, because the Supreme Court is trying to resolve differences between the Ninth Circuit and the Second Circuit, or the Eighth Circuit and the Ninth Circuit, or something like that. So we have a real shortfall of justice that exists as a potential whenever we have a court that is so error ridden, and its error-ridden nature is demonstrated because of the correction responsibility that has to be exercised by the U.S. Supreme Court. The truth of the matter is, for virtually all litigants within the Ninth Circuit, the decisions of the Ninth Circuit are the final word. How would you like knowing that you were going to court and that the appellate court which would oversee your day in court was reversed 90 percent of the time when it was considered by the Supreme Court, but you only had a three-tenths of 1 percent chance of getting an injustice in your case reversed because the Supreme Court only takes three-tenths of 1 percent of the cases? I think America deserves to have more confidence in its judicial system than that. The Ninth Circuit is an activist court in desperate need of therapy and help. After a thorough review of its record, it is my judgment that Professor Fletcher would do more harm than good in the Ninth Circuit, would move that court further outside the judicial mainstream. There has been a great deal of discussion about the applicability of Federal antinepotism statutes to this nominee. I commend individuals for raising this issue. It is critical to the respect for law. I have heard some people say they do not really care whether this is against the law or not. Frankly, I think we ought to care. I think a disregard for the law, especially as it relates to the appointment of judges, is a very, very serious matter. It is critical to the respect for law in a society as a whole that we in the Senate respect the laws that apply to us. However, one of the principles of judicial restraint identified by Justice Brandeis many years ago is that a court should not decide a difficult constitutional or statutory question if there is another straightforward basis for resolving the case. Applying that principle to this nomination, I have concluded that whether or not the statute precludes confirmation of Professor Fletcher, there is ample basis in the record to suggest that Professor Fletcher would exacerbate the Ninth Circuit's activism and I plan to oppose his nomination on that basis. A number of Professor Fletcher's writings suggest a troubling tendency toward judicial activism. For example, Professor Fletcher has written in praise of Justice Brennan's mode of constitutional interpretation. He also has criticized the Supreme Court for reading the Constitution in a literalistic way. This is troubling, to say the least. Justice Brennan, as even his admirers would admit, is the godfather of the evolving Constitution and the primary critic of the literal reading of the constitutional text. You know, there are those who believe the Constitution can be stretched, and grows, and amends itself to mean what someone wants it to mean at the time a crisis arises. I reject that. I reject Brennan's approach. Professor Fletcher embraces it. Those who believe that the Constitution can be an evolutionary document really are those who would be able to put their stamp of meaning anywhere they want anytime they choose. The debate over whether evolving standards of decency or the text should guide judicial decisions is at the heart--the very heart--of my concern over judicial activism. Nowhere in the country is the Constitution ``evolving'' more rapidly than in the Ninth Circuit. We cannot afford to send another activist to this court. Although a number of Professor Fletcher's writings focus on relatively esoteric subjects, they display a disturbing tendency toward activism on the issues addressed. He has criticized the current limitations on standing and has advocated an approach that would focus more on the legislative intent-- an inherently dubious guide--and would afford standing to plaintiffs excluded by the current doctrine. Likewise, he has written that the procedural history of an amendment's enactment can lessen the presumption of constitutionality that would otherwise attach to the enactment. Frankly, we ought to be evaluating the constitutionality on the basis of the Constitution, not the procedural history. This is particularly disturbing in light of the Ninth Circuit's apparent tendency to apply a presumption of unconstitutionality to popular initiatives and other legislation the judges dislike on policy grounds. In an opinion piece written in the midst of Justice Thomas' confirmation process, Professor Fletcher wrote that ``the Senate must insist nominees articulate their constitutional views as a condition of their confirmation.'' Professor Fletcher's articles and answers to written questions ``articulate'' his view of the Constitution. Let's look at them. It is a view with which I disagree and which, in my judgment, will only exacerbate the problems of the Ninth Circuit. Finally, I want to acknowledge that I realize we do not appear to have the votes to defeat this nomination. Nonetheless, I believe it is important to come to the floor and debate this nomination, rather than approve it in a midnight session. Those of us on the Judiciary Committee have had the opportunity to reflect on the problems of the Ninth Circuit--the shortfall and the injustice for people who live in the Ninth Circuit, the likelihood that they get bad decisions and only three-tenths of 1 percent of them will ever be considered by the U.S. Supreme Court. This nominee would only make that problem worse. I urge my colleagues to oppose the nomination on that basis. I yield the floor and reserve the remainder of the time for those opposing the nomination. Mr. SPECTER addressed the Chair.

Mr. ASHCROFT

Mr. ASHCROFT. Mr. President, I would like to take this opportunity to congratulate the members of the conference committee on S. 2206 for their hard work on this legislation which reauthorizes the Head Start program, the Low-Income Home Energy Assistance program, and the Community Services Block Grant (CSBG) program. I am particularly grateful to the conferees for including in this legislation language that will expand the opportunities for charitable and religious organizations to serve their communities with Community Services Block Grant funds. This language, which is based upon my Charitable Choice provision in the 1996 welfare reform law, will encourage successful charitable and faith-based organizations to expand their services to the poor while assuring them that they will not have to extinguish their religious character as a result of receiving government funds. This provision makes clear that states may use CSBG funds to contract with charitable, religious and private organizations to run programs intended to fight poverty and alleviate its effects on people and their communities. When states do choose to partner with the private sector, the charitable choice concept ensures that religious organizations are considered on an equal basis with all other private organizations. For years, America's charities and churches have been transforming shattered lives by addressing the deeper needs of people--by instilling hope and values which help change behavior and attitudes. By contrast, government social programs have often failed miserably in moving recipients from dependency and despair to responsibility and independence. We in Congress need to find ways to allow successful faith-based organizations to succeed where government has failed, and to unleash the cultural remedy that our society so desperately needs. Unfortunately, in the past, many faith-based organizations have been afraid--often rightfully so--of accepting governmental funds in order to help the poor and downtrodden. They fear that participation in government programs would not only require them to alter their buildings, internal governance, and employment practices, but also make them compromise the very religious character which motivates them to reach out to people in the first place. My charitable choice measure is intended to allay such fears and to prevent government officials from misconstruing constitutional law by banning faith-based organizations from the mix of private providers for fear of violating the Establishment Clause. Even when religious organizations are permitted to participate, government officials have often gone overboard by requiring such organizations to sterilize buildings or property of religious character and to remove any sectarian connections from their programs. This discrimination can destroy the character of many faith-based programs and diminish their effectiveness in helping people climb from despair and dependence to dignity and independence. Charitable choice embodies existing U.S. Supreme Court case precedents in an effort to clarify to government officials and charitable organizations alike what is constitutionally permissible when involving religiously-affiliated institutions. Based upon these precedents, the legislation provides specific protections for religious organizations when they provide services with government funds. For example, the government cannot discriminate against an organization on the basis of its religious character. A participating faith-based organization also retains its religious character and its control over the definition, development, practice, and expression of its religious beliefs. Additionally, the government cannot require a religious organization to alter its form of internal governance or remove religious art, icons, or symbols to be eligible to participate. Finally, religious organizations may consider religious beliefs and practices in their employment decisions. I have been told by numerous faith-based entities and attorneys representing them that autonomy in employment decisions is crucial in maintaining an organization's mission and character. Charitable choice also states that funds going directly to religious organizations cannot be used for sectarian worship, instruction, or proselytization. In recent years, Congress has begun to recognize more and more that government alone will never cure our societal ills. We must find ways to enlist America's faith-based charities and nongovernmental organizations to help fight poverty and lift the downtrodden. The legislation before us today provides us with such an opportunity. Again, I want to express my appreciation to the conferees and their staff that worked on this legislation: Senators Jeffords, Coats, Gregg, Kennedy and Dodd, and Congressmen Goodling, Castle, Souder, Clay, and Martinez. I especially want to commend Senator Dan Coats, the Chairman of the Labor Committee's Subcommittee on Children and Families, for his desire to include my charitable choice language in the Community Services Block Grant Reauthorization. Senator Coats worked very hard in the conference committee to garner bipartisan support for this provision. Thanks to his efforts, and the efforts of this Congress, we will soon expand the opportunities for charitable and faith-based organizations to make a positive impact in their neighborhoods and communities through the Community Services Block Grant program.

Mr. ASHCROFT

Mr. ASHCROFT. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. ASHCROFT. Mr. President, I suggest the absence of a quorum.

Mr. ASHCROFT. Mr. President, this morning the Senate will be in a period for morning business until 2 p.m. Following morning business, it will be the leaders' intention to begin consideration of the agriculture appropriations conference report under a short time agreement. The Senate may also resume consideration of S. 442, the Internet tax bill. At 5:30 p.m., under a previous order, the Senate will vote on the motion to invoke cloture on the motion to proceed to H.R. 10, the financial services modernization bill. Further votes could occur following the cloture vote in relation to the motion to proceed, and if consent is granted, a vote on or in relation to the agriculture conference report, the Internet tax bill, or any other legislative or executive items cleared for action. Members are reminded that a cloture petition was filed on Friday to the Internet tax bill. That vote will occur immediately following the adoption of the motion to proceed to the financial modernization bill, if cloture is invoked today at 5:30 p.m. In addition, as a result of cloture being filed on the Internet bill on Friday, members have until 1 p.m. today to file first-degree amendments to the Internet bill. Mr. President, finally, I ask unanimous consent that the time under the control of Senator Mack begin at 12 noon today.

Mr. ASHCROFT

Mr. ASHCROFT. Mr. President, thank you.

Mr. ASHCROFT

Mr. ASHCROFT. Mr. President, I am pleased to have this opportunity to begin a discussion today which should clarify some of the competing rhetoric and certainly some of the misinformation that is being spoken about the potential for tax cuts in our culture. We are taxed at the highest rates in history. Never before have the American people been asked to devote so much of their hard-earned resources to government. Yet there are lots of statements made about the incapacity of this government to afford tax cuts to the American people, to give them some more of what they have earned in return for their hard work. I rise today to speak the truth about tax cuts, to speak the truth about the so-called emergency spending, about Social Security, and about the budget surplus. A group of like-minded Senators and I have been engaged in a long and arduous fight to return to the American taxpayers more of their own money. We are here to announce that we are not giving up that fight. It may now be clear that the Senate will not be passing a tax cut this year. Even if the majority leader were to bring the House-passed bill to the floor, there are just too many Members, big spenders, if you will, who are more interested in spending the surplus than returning the surplus to the rightful owners--those who generated the surplus. I only wish the advocacy groups who attack tax cuts would be honest enough to criticize the President and the other big spenders as they spend the surplus on more and more government programs and projects. Senators Inhofe, Grams, Brownback, Bob Smith and I have waged a long battle, battle after battle, as a matter of fact, since May of this year, when we opposed the Senate Budget Committee resolution, because it contained only $30 billion in tax cuts over the next 5 years. Because of our strong and vocal opposition to that particular measure, our leadership made a commitment to us to fight for more tax relief, to adopt the House-passed tax cut number, to make eliminating the marriage penalty a priority of the Senate in a tax cut bill, and to move the budget reconciliation package so that tax cuts would be protected. In June, the House did pass a budget resolution that included $101 billion in tax relief. The other Senators and I, in accordance with the previous agreement with the leadership of this House, assumed that this would be the amount of tax relief that would be delivered to hard- working Americans this year. You have $101 billion in the House and an agreement by the Senate that it will go to the House figure; you would think you would be able to get to $101 billion. As the August recess loomed before us, the tax cuts remained elusive. That is why on July 17, a group of Senators and I came to the floor during consideration of the legislative branch appropriations bill and attempted to add a marriage penalty elimination amendment to that bill. To eliminate the marriage penalty would effectively reduce taxes for about 21 million couples who are penalized simply because they are married. Our point was simple and clear: Congress should not receive the funding under the legislative branch appropriations before the American people got the opportunity to keep a reasonable amount of what they earned. Why give all the money that Congress wants to Congress while we don't honor the need for the American people to fund their families? We were prevented from offering our amendment at that time by the Democrats. We came back 2 weeks later while this body was considering the Treasury-Postal Services appropriations bill and we offered our amendment again. Our amendment would have eliminated the unfair and discriminatory marriage penalty, that extra tax that people pay just because they are married, which affects 21 million American families to the tune of about $29 billion a year. We did not rely on spending the surplus in order to advocate that tax cut. We called for reductions in spending. We said that the Government has been on a budget high in fat for too long, it is time for us to provide the people with some relief, and we should do that by cutting spending. So we called for reductions in spending to offset the reduced revenues that would have come as a result of the tax cut. On July 29, a majority of the individuals serving in this Senate voted in favor of eliminating the marriage penalty when they voted not to table our amendment. A majority of the Senate said that it is time to stop imposing Washington's values on the people and start imposing the people's values on Washington. The marriage penalty is perhaps one of the best examples of an elitist Washington imposing its values on the principles of the American people. We know that the American people understand the value of marriage and families in our culture. We know that they understand that if we expect to succeed in the next century, if we don't want to sink, if we want to swim, we had better make it possible for families to meet their needs. One way to do that is to stop penalizing people for being families, and we ought to do that. Unfortunately, we had to withdraw the amendment because of the constitutional requirement that revenue bills originate in the House of Representatives. But the Senate did go on record supporting a marriage penalty elimination--this tax cut. A majority of this body voted to support eliminating the marriage penalty, but today we are facing the disappointing reality that the Senate will not pass, or probably will not even vote on, tax relief. Much has been made about the surplus that is now attendant to the financial situation in Washington. Last week, the President happily announced that, for the first time in almost 30 years, the Federal budget is in balance--not just in balance, but there is a budget surplus of almost $70 billion. President Clinton even took credit for the balanced budget and the budget surplus. Well, who is really responsible for the budget surplus? Was it the President and his party who voted for the largest tax increase in American history in 1993? Or was it the Republicans who made balancing the budget a national priority? Let me suggest that it wasn't the President, and let me suggest that it wasn't the Republicans, but that it was the American people who continued to work hard, to pay their taxes, continued to demand from their elected officials that we have some fiscal discipline. The American people should be credited with balancing the budget through their hard work, creativity, innovation, and their industry. Government doesn't generate revenue, it doesn't create wealth, people do, when they work hard. Make no mistake, the Federal budget surplus is up because Federal income taxes are up. Income tax revenues have increased $83.7 billion, or 11 percent, just since last year. Where do those tax revenues come from? They come from the American people. The President's record on taxes is threefold: Increase, increase, and increase. He has not proposed cutting taxes. Rather, his latest budget proposed increasing taxes by $100 billion over the next 5 years. Americans pay more in taxes today than they have in any other time in our history. President Clinton raised taxes by $242 billion in 1993, the largest hike in U.S. history, and sought to increase them another $290 billion as part of his plan to nationalize the Nation's health care system in 1994. And he sought to increase taxes by another $500 billion-plus this year as part of a tobacco tax bill. In 1995, he vetoed the first major tax cut since Ronald Reagan was President. We all remember when the President mused aloud about his 1993 tax increase. He put it this way: ``It might surprise you to know that I think I raised them too much, too.'' Well, frankly, I believe the President is right that he raised taxes too much. If we raised taxes too much, wouldn't it behoove us to begin to settle the account and start to let the American people have some of their hard-earned resources for expenditure in their families? It is one thing to confess that you raised taxes too much; it is another thing to develop another plan to spend all that you raised when you raised too much. If he really believes we raised taxes too much, we should give some of these hard-earned resources back. The President seems to have forgotten that it is the American people who have led us to this budget surplus. It is their money, not our money. Mr. President, I have not forgotten this key fact. That is why I am here today--to say to the American people that they deserve not to have their money squandered on more Government, but they deserve a return on their investment--a return in the form of tax relief that is funded by reducing the spending of a Government addicted to a high-fat diet. This Government should be involved in reducing its invasion of the American culture with more and more Government and thereby consuming more and more of what families need to meet their needs. Now, the President has a plan, but his plan is to spend the surplus. When it became clear earlier in the year that the fiscal discipline the Republican Congress had demanded from the President would result in a budget surplus, the President made a statement in his State of the Union Address which he has repeated numerous times since then. He said this, and I have this statement on a chart here: But whether the issue is tax cuts or spending, I ask all of you to meet this test: Approve only those priorities that can actually be accomplished without adding a dime to the deficit. Now, if we balance the budget for next year, it is projected that we will then have a sizable surplus in the years that immediately follow. What should we do with this projected surplus? I have a simple four-word answer: Save Social Security first. Tonight, I propose that we reserve 100 percent of the surplus--that's every penny of any surplus-- until we have taken all the necessary measures to strengthen the Social Security system for the 21st century. That is quite a statement. It is a bold statement. The President has used this statement to attack our plan to eliminate the marriage penalty and provide tax relief. He has used this sort of suggestion that we will just have to save Social Security and therefore you can't have any tax relief for the American people--a tax relief package that we were and are prepared to pay for out of reduced spending. But has the President attempted to keep his pledge to use every penny to save Social Security? There is only one answer. That answer is a resounding no. Only days after his Social Security pledge, he sent a budget to Congress that contained $150 billion in new spending, according to the Senate Budget Committee. Without that new spending, the surplus would have been $150 billion larger--hardly every penny of any surplus being used to save Social Security. It seems like every week the President has proposed an additional new spending program. His fiscal year 1999 budget, submitted earlier in the year, contained $150 billion in new spending. Just last Thursday, the President was at it again. At a press conference at the White House, he repeated his call for $34 billion to run our schools from Washington and to take control of our children's education away from their parents and teachers with new Federal expenditures of resources that are hard- earned by the American people, which he won't allow them to keep to fund their families. The President called for this new spending, as with all his spending requests, without a dime of offsetting savings. He is not talking about reallocating Federal expenditures, he is talking about increasing Federal expenditures. That means it can only be financed by dipping into the same surplus that he pledged would be spent for Social Security. Every penny of any surplus--the President said, should be reserved until we have taken all the necessary measures to strengthen Social Security. The President is gifted with language, so now we're redefining the phrase, every penny. It reminds me of the fellow who sat down to dinner every night and put his finger in the wine glass and flipped a little wine off his fingers. His friend said to him, ``Why do you do that? Every night you come in, stick your finger in the wine glass, and you flip the wine off your finger.'' He said, ``Well, I promised my mother on her deathbed that I would never drink a drop of wine. And that is the drop I am not drinking.'' The truth of the matter is that the President has said we are going to devote every penny of the surplus to Social Security, and there are not any pennies there--just dollars, and billions of dollars. So we are free to spend the billions of dollars. Those are the pennies we are not saving but flipping them off our finger because they are not there. In addition to all the increased spending that the President has asked for--spending that breaks the budget caps--this body will be called upon to vote for a package that includes at least $17.8 billion to pay for so-called emergencies--and I will go into what those quote- emergencies-unquote are shortly--that will be paid for out of the surplus. The truth is, they have done nothing to save Social Security. They have no proposal. They tried to discredit tax cuts by saying cutting taxes would impair Social Security. They might impair some other invasive government programs but not Social Security. But this is a way of trying to fight against any reduction in government, any ability of this Senate to try to say to families you need to be able to fund your needs rather than just be used as workers to fund the ambitious schemes of spending and big government. The truth is that the big spenders don't care about saving Social Security or balancing the budget. They care about reserving their ability to spend the taxpayers' money. They do not want their ability to spend curtailed in any way--they want the amounts to continue to increase, and they want to stop any tax cut that infringes on their spending power. They look at this surplus as an huge pot of money to finance all their pork barrel pet projects. There is no fiscal discipline here! There is only a strong commitment, an all consuming passion to prevent tax cuts at any expense--even if it means misleading the American people by their demagoguery about saving social security. The President said he wanted to save Social Security; devote every penny. The President and the big spenders have feigned their concern for Social Security and fiscal responsibility. It is a mantra that has been repeated thousands of times--sort of a slogan that any time there is a problem, they run and hide behind the Social Security billboards. They stick their heads into the ground and yell, ``Social Security,'' so they can avoid dealing with issues that count. I guess we can expect to hear that mantra another thousand more times in the next month preceding the election. But it is also clear that when we look at the President's record on Social Security reform, that he talks the talk but then takes a walk. Despite promising to save Social Security first, the President has never proposed a plan to reform Social Security--not even hinted at it. Clinton's one and only proposal related to Social Security was to promote and to sign into law a $25 billion tax increase for some Social Security beneficiaries. For all his rhetoric, not one plan--not one concrete proposal--to preserve the Social Security program. Social Security merely becomes a tool in his hand to try to divert attention from the opportunity to cut government spending and provide Americans with the opportunity to fund their families rather than to fund the bureaucracy. While a series of bills have been introduced by Republicans and Democrats addressing Social Security solvency, Congress is still, to this day, waiting upon a plan from the President. But the President has one goal, and that is to spend the surplus, and spend it as quickly as he can. Unfortunately, the President is not alone in this goal. It appears that a majority of the Senate is opposed to cutting taxes or cutting spending. They are only interested in one thing as well--stopping tax relief so that they can spend the surplus themselves. The President has presented to the American people a false choice--he said it has to be either this or this--and it is a false choice. He has said it is a choice between saving Social Security and Squandering the Surplus on tax relief. But this is a misleading choice. It doesn't have to be one or the other. We can take the surplus, devote it to Social Security, and we can provide tax relief by cutting some of the spending that is wasteful and inappropriate by a bureaucracy which is bloated. I believe we can do both. But only if we do not spend the surplus on increased government, as is currently being planned. Congress is planning to spend at least $17.8 billion of the surplus next week in the ``emergency supplemental'' bill. And we can be sure that the $17.8 billion figure will continue to grow exponentially by the time this Congress adjourns. Mr. President, the Administration's spending requests during this Congress have become more than a bad habit. These requests reveal a consistent failure at responsible governance. Twenty billion dollars or more in ``emergency'' appropriations may be requested before this Congress adjourns. Billions of these dollars will pay for expenditures the Administration knew it would incur. What are we talking about? These aren't surprise expenditures. These aren't emergencies that have come up. These are expenditures that have long been planned to be put into the emergency spending portion of the budget so they wouldn't come under the caps--so they wouldn't come under the normal limits that are related to balancing the budget. First, the administration did not realize--according to this, if it is an emergency--the year 2000 would follow the year 1999. It requested $3.25 billion to clean up the year 2000 computer problem. Why wasn't that in the ordinary spending appropriations request? DId anyone in the Administration have a calendar? Not only is the emergency designation of Y2K funding wrong, but experts in the field have informed my office that the Administration could have corrected this computing problem for far less money if the process had been stated earlier. So instead, the administration proposes to raid the surplus and to spend money that could have been used to save Social Security. Every penny? Maybe there haven't been any pennies, just dollars. Second, the administration claims it did not know that we would continue to deploy troops in Bosnia next year. This is an ``emergency''--that somehow the Bosnia deployment is unanticipated. It has been apparent from the beginning of NATO's Implementation Force (IFOR) that American troops were there to stay much longer than the President had initially promised the American people three years ago. In dispatching over 22,000 U.S. soldiers to participate in the NATO Bosnia mission in 1995 and 1996, the President told the American people that the mission would take about one year. Secretary of Defense William Perry and Chairman of the Joint Chiefs John Shalikashvili both confirmed the one-year duration of NATO's Implementation Force (IFOR). Secretary Perry testified before the House International Relations Committee that the total cost of the Bosnia mission would be about $2 billion. Now, three years later, after two broken troop withdrawal deadlines and over $6 billion in cost, the Administration is seeking to fund this operation straight out of the surplus, which could be used, if we were to take the President at his word, to save Social Security. The President announced in December of 1997 that American troops would stay in Bosnia indefinitely, and yet he asked for an emergency appropriations of $1.9 billion for fiscal year 1999 operational costs. Next the Administration proposed to spend the surplus that he proposed be used to save Social Security on building embassies overseas. Yet, after the tragic bombings of Kenya and Tanzania, the State Department could not even tell the Congress how much money they had spent to upgrade embassy security to meet standards set forth in the Inman Report of 1985. An effective accounting system to track these funds had not been established. A failure to monitor where the money has been going is not the only problem. In recent years, the State Department has not even spent all the money appropriated by Congress for diplomatic security. In 1995 and 1996, the State Department failed to spend $100 million appropriated by Congress to enhance the security of U.S. overseas posts but now they want to raid the surplus in a so-called ``emergency.'' Mr. President, this administration has not managed fiscal resources in a manner which inspires confidence. The administration will spend over $550 billion in discretionary spending under the budget agreement, but instead of paying for these new spending requests from some other part of the budget, the administration wants to raid the surplus that would save Social Security. The real outrage is that the President plans to spend the surplus, not to preserve Social Security. The truth is that the President and some in the Congress have misled the American people about their plans for the surplus. They have no intention of saving the surplus to fix Social Security. They have no plan to fix Social Security. Their plan is to spend the surplus on fake emergencies and increase spending. They are unwilling to use the budget process to live within the budget caps to finance their spending, so they categorize items as emergencies so that they don't have to exist within the framework and discipline that would characterize any family's budget. We have caps on our spending at home. We have limits on what we can take and spend. We can't decide we are going to call something an emergency and create resources out of thin air. It can't be done by the American people. It shouldn't be done by the American President and Congress. So we, the Congress, end up denying hard-working Americans a tax cut and we scare senior citizens about the future of Social Security, and then they spend the surplus. One of the things we end up spending the surplus on is pork projects. There are many additional spending items that are being talked about for the omnibus appropriations emergency spending behemoth. I do not mean to say all of these items are without merit. Indeed, there have been natural disasters, floods, embassy bombings and other occurrences which demand our attention and perhaps some additional funding. But to do it all in an emergency rather than to be addressing in the next funding year, very shortly anyhow, where we would put the funding in the stream of limits and discipline that the budget process imposes is to simply not do our job. But even these events should not be used to excuse our willingness to deny tax relief or to spend the surplus. The Congress should find the money within the existing budget to pay for these items. As I said before, most of these items are not true emergencies. We have known about Bosnia for a long time. The need to increase our military's readiness we have known, and the Y2K computer problem we have known for years. But by labeling them emergencies, the President wants to use an accounting gimmick to spend the surplus, to spend it outside the normal budget process, and spend it in a way that does not affect the calculation under our spending caps. The fiscally disciplined way to deal with this is to work within the budget, to stop pork barrel spending, and to pay for these priorities. Mr. President, I want to share with you some of the items contained in the fiscal year 1999 budget in various appropriations bills that the Congress thinks are more important than saving Social Security because they are willing to spend on this kind of pork. Now, the Senator from Arizona, Mr. McCain, has done the American people and this body a great service. He has gone through the appropriations bills and he has identified all the earmarked pork programs and put this information on his home page on the Internet. I recommend it to people who want to spend an evening getting a headache reading about additional Federal spending. Seriously, it is a list that is comprehensive and it is worth looking at. I have looked at the information. Let me share some of it with you. Here are some of the examples of what we are spending for this year, items that the big spenders obviously think are more important than Social Security because they are unwilling to cut these programs in order to save the surplus. If they really wanted these things, thought they were worth it, they should be willing to cut other spending. But they are willing to take them out of the surplus. Believe you me, if this list of earmarked expenditures that Senator McCain has on his web site were put up in big print, it would be a stack that would be substantial. Here are a couple things. Here is $3.3 million for the Shrimp Aquaculture project. And let me apologize to the Senate for calling it pork. This isn't pork. This is shrimp. But there is $3.3 million. Here is another earmark. Wait a minute. Here is another one that is not pork, either. Pardon me. This is grasshoppers--$750,000 for grasshopper control research. Here is another--pardon me, not pork, not shrimp, not grasshoppers. Here is $150,000 to hire a new potato breeder. Here is $143,200 to continue subterranean termite research. Well, we have gotten through virtually everything but pork. Let's see if we can find something related to pigs in the process. Obviously, this is political pork, whether or not it is pork in the nutritional sense. Here is $2 million to unspecified communities in southern California for planning associated with the National Communities Conservation Planning Program. So we have $2 million for communities to plan to be a part of a planning program. We might call it planning squared, I think--planning for planning. I suppose we could have some additional resources to help people plan for planning to plan. Here is an earmark of $1.1 million to rehabilitate priest quarters in an old schoolhouse in a national historic site; an earmark of $1 million for incinerator replacement; an earmark of $3.4 million to meet uncontrollable costs at a wildlife center located in Wisconsin. ``Uncontrollable costs'' may be a phrase that seems acceptable in government, but families don't allow for uncontrollable costs. We are not allowed to have uncontrollable costs. So the bottom line is this. When we are willing to load up our bills with this kind of pork or termites or shrimp or grasshoppers or whatever else it is, it is not about tax cuts, and it is not about saving Social Security. It is about money. It is about spending. It is about power because he who has the money has the power. Someone said it is the Golden Rule: He who has the gold makes the rules. It is a power game here in Washington, and the big spenders just can't allow the American people to control their own money. Last week, Federal Reserve Chairman Alan Greenspan appeared before the Senate Budget Committee and was asked what in his opinion should be done with the surplus. Let's look at his remarks. My first preference is to allow the surplus to reduce the debt. I am also, however, aware of the pressures that will exist to spend it. This individual, who perhaps knows as much about Washington and knows as much about this country and its financial caps indicates he knows about . . . . . . the pressures that will exist to spend it. And that in my judgment would be the worst of all outcomes. And if push came to shove and it was either to spend it or cut taxes, I would strongly and unequivocally be on the side of cutting taxes. Alan Greenspan happens to know that the growth and intensity, the kind of opportunity that is presented in the American economy is curtailed when we have more and more spending, and that growth and opportunity is enlarged when we have people with more of their money to spend themselves through tax cuts. That is why he says: And if push came to shove and it was either to spend it or cut taxes, I would strongly and unequivocally be on the side of cutting taxes. He stated that to spend the surplus would be the worst of all outcomes, but that is apparently what this President plans to do. I am sad to inform you, Mr. President, that the worst of all outcomes is about to happen. The pressure to spend is just too strong. I am here today to set the record straight. We cannot let the surplus be spent on mislabeled emergencies and increased spending. We must demand fiscal discipline from this Congress. We should demand truth to senior citizens about the fate of the surplus, and we will demand that the President, who decries tax cuts--we will demand that the President stand accountable for his actions as he prepares to spend the surplus rather than to keep his promise to save Social Security. The American people will not be fooled. You cannot save Social Security by wasting the surplus on bureaucracy in Washington, DC. You cannot save Social Security when you are sending the elderly's Social Security checks to the shrimp aquaculture project in Hawaii. You cannot save Social Security when the people recognize your posturing for what it is, a political exercise designed not to save Social Security but to save yourself. Mr. President, I appreciate this opportunity and yield the remainder of my time to my colleagues. I yield the floor to the Senator from Idaho, Senator Craig.

Mr. ASHCROFT

Mr. ASHCROFT. Mr. President, I rise today as a co-sponsor of the Fairness in Asbestos Compensation Act of 1998 to speak in favor of this important, bipartisan measure. I support this bill for a simple reason--it makes sense. The problems caused by the manufacture and use of asbestos are well-documented. Although some companies initially denied responsibility and fought suits to recover for asbestos-related injuries in court, the injuries associated with asbestos and the fact that manufacturers are liable for those injuries are now well- established. The courts--both state and federal--have done an admirable job of establishing the facts and legal rules concerning asbestos. That is a job the courts do well. However, now that the basic facts and liability rules have been established, the courts are being asked simply to process claims. That is not a job the courts do particularly well. The rules governing court actions give parties rights to dispute facts that have been conclusively established in other proceedings. All the while the meter is running for the lawyers on both sides. Dollars that could go to compensate deserving victims, instead go to lawyers and court costs. In the asbestos context, these problems are exacerbated by the finite amount of resources available to compensate victims and the fact that legal rules concerning both punitive damages and what constitutes a sufficient injury to bring suit make for jury awards that do not correspond to the seriousness of the injury. Someone filing suit because of a preliminary manifestation of a minor injury, i.e., pleural thickening, which may never lead to more severe symptoms, may receive more compensation than another person with more serious asbestos- related injuries. None of this is to suggest that it is somehow wrong for plaintiffs with a minor injury to file suit. To the contrary, some state rules concerning when injury occurs obligate plaintiffs to file suit or risk having their suit dismissed as time-barred. What is more, in light of the finite number of remaining solvent asbestos defendants, potential plaintiffs have every incentive to file suit as soon as legally permissible. The Fairness in Asbestos Compensation Act of 1998 attempts to address these problems by establishing an administrative claims systems that aims to compensate victims of asbestos rationally and efficiently. The Act accomplishes this goal by ensuring that more serious injuries receive greater awards, by securing a compensation fund so that victims whose conditions are not yet manifest can recover in the future, and by eliminating the statute of limitations and injury rules that force plaintiffs into court prematurely. Although I wish I could claim some pride of authorship in these mechanisms, these basic features were all part of a proposed settlement worked out by representatives of both plaintiffs and defendants. At the end of last term, the Supreme Court rejected the proposed global asbestos settlement in Amchem Products versus Windsor. The District Court had certified a settlement class under Rule 23 that included extensive medical and compensation criteria that both plaintiffs and defendants had accepted. The Supreme Court ruled that this type of global, nationwide settlement of tort claims brought under fifty different state laws could not be sustained under Rule 23. The Court recognized that such a global settlement would conserve judicial resources and likely would promote the public interest. Nonetheless, the Court concluded that Rule 23 was too thin a reed to support this massive settlement, and that if the parties desired a nationwide settlement they needed to direct their attention to the Congress, rather than the Courts. I believe the Supreme Court was right on both counts--the proposed settlement criteria were in the public interest, but the proposed class simply could not be sustained under Rule 23. The Rules Enabling Act and the inherent limits on the power of federal courts preclude an interpretation of Rule 23 that would result in a federal court overriding or homogenizing varying state laws. However, as the Supreme Court pointed out, Congress has the power to do directly what the courts lack the power to do through a strained interpretation of Rule 23. This bill takes up the challenge of the Supreme Court and addresses the tragic problem of asbestos. The bill incorporates the medical and compensation criteria agreed to by the parties in the Amchem settlement and employs them as the basis for a legislative settlement. In the simplest terms, the legislation proposes an administrative claims process to compensate individuals injured by asbestos as a substitute for the tort system (although individuals retain an ability to opt-in to the tort system at the back end). The net effect of this legislation should be to funnel a greater percentage of the pool of limited resources to injured plaintiffs, rather than to lawyers for plaintiffs and defendants. I want to be clear, however, that I am not here to suggest that this is a perfect bill. This bill represents a complex solution to a complex problem. A number of groups will be affected by this legislation, and it may be necessary to make changes to make sure that no one is unfairly disadvantaged by this legislation. But that said, I am confident that we can make any needed changes. We have a bipartisan group of Senators who have agreed to cosponsor this legislation, and the bill represents a sufficient improvement in efficiency over the existing litigation quagmire that there should be ample room to work out any differences. Finally, let me also note that this bill also plays a minor, but important role in preserving a proper balance in the separation of powers. I have been a strong and consistent critic of judicial activism. Judges who make legal rules out of whole cloth in the absence of constitutional or statutory text damage the standing of the judiciary and our constitutional structure. On the other hand, when judges issue opinions in which they recognize that the outcome sought by the parties might well be in the public interest, but nonetheless is not supported by the existing law, they reinforce the proper, limited role of the judiciary. Too often, federal judges are tempted to reach the result they favor as a policy matter without regard to the law. When judges succumb to that temptation, they are justly criticized. But when they resist that temptation, their self-restraint should be recognized and applauded. The Court in Amchem rightly recognized a problem that the judiciary acting alone could not solve. By offering a legislative solution to that problem the bill provides the proper incentives for courts to be restrained and reinforces the proper roles of Congress and the judiciary. In short, this bill provides a proper legislative solution to the asbestos litigation problem. It ensures that in an area in which extensive litigation has already established facts and assigned responsibility, scarce dollars compensate victims, not lawyers. I want to thank Chairman Hatch for his leadership on this issue and to thank my co-sponsors for their work on the bill. I look forward to working with them to ensure final passage of this legislation. The courts have completed their proper role in ascertaining facts and liability. It is time for Congress to step in to provide a better mechanism to direct scarce resources to deserving victims.

Mr. ASHCROFT

Mr. ASHCROFT. Mr. President, I rise today as a co-sponsor of the Fairness in Asbestos Compensation Act of 1998 to speak in favor of this important, bipartisan measure. I support this bill for a simple reason--it makes sense. The problems caused by the manufacture and use of asbestos are well-documented. Although some companies initially denied responsibility and fought suits to recover for asbestos-related injuries in court, the injuries associated with asbestos and the fact that manufacturers are liable for those injuries are now well- established. The courts--both state and federal--have done an admirable job of establishing the facts and legal rules concerning asbestos. That is a job the courts do well. However, now that the basic facts and liability rules have been established, the courts are being asked simply to process claims. That is not a job the courts do particularly well. The rules governing court actions give parties rights to dispute facts that have been conclusively established in other proceedings. All the while the meter is running for the lawyers on both sides. Dollars that could go to compensate deserving victims, instead go to lawyers and court costs. In the asbestos context, these problems are exacerbated by the finite amount of resources available to compensate victims and the fact that legal rules concerning both punitive damages and what constitutes a sufficient injury to bring suit make for jury awards that do not correspond to the seriousness of the injury. Someone filing suit because of a preliminary manifestation of a minor injury, i.e., pleural thickening, which may never lead to more severe symptoms, may receive more compensation than another person with more serious asbestos- related injuries. None of this is to suggest that it is somehow wrong for plaintiffs with a minor injury to file suit. To the contrary, some state rules concerning when injury occurs obligate plaintiffs to file suit or risk having their suit dismissed as time-barred. What is more, in light of the finite number of remaining solvent asbestos defendants, potential plaintiffs have every incentive to file suit as soon as legally permissible. The Fairness in Asbestos Compensation Act of 1998 attempts to address these problems by establishing an administrative claims systems that aims to compensate victims of asbestos rationally and efficiently. The Act accomplishes this goal by ensuring that more serious injuries receive greater awards, by securing a compensation fund so that victims whose conditions are not yet manifest can recover in the future, and by eliminating the statute of limitations and injury rules that force plaintiffs into court prematurely. Although I wish I could claim some pride of authorship in these mechanisms, these basic features were all part of a proposed settlement worked out by representatives of both plaintiffs and defendants. At the end of last term, the Supreme Court rejected the proposed global asbestos settlement in Amchem Products versus Windsor. The District Court had certified a settlement class under Rule 23 that included extensive medical and compensation criteria that both plaintiffs and defendants had accepted. The Supreme Court ruled that this type of global, nationwide settlement of tort claims brought under fifty different state laws could not be sustained under Rule 23. The Court recognized that such a global settlement would conserve judicial resources and likely would promote the public interest. Nonetheless, the Court concluded that Rule 23 was too thin a reed to support this massive settlement, and that if the parties desired a nationwide settlement they needed to direct their attention to the Congress, rather than the Courts. I believe the Supreme Court was right on both counts--the proposed settlement criteria were in the public interest, but the proposed class simply could not be sustained under Rule 23. The Rules Enabling Act and the inherent limits on the power of federal courts preclude an interpretation of Rule 23 that would result in a federal court overriding or homogenizing varying state laws. However, as the Supreme Court pointed out, Congress has the power to do directly what the courts lack the power to do through a strained interpretation of Rule 23. This bill takes up the challenge of the Supreme Court and addresses the tragic problem of asbestos. The bill incorporates the medical and compensation criteria agreed to by the parties in the Amchem settlement and employs them as the basis for a legislative settlement. In the simplest terms, the legislation proposes an administrative claims process to compensate individuals injured by asbestos as a substitute for the tort system (although individuals retain an ability to opt-in to the tort system at the back end). The net effect of this legislation should be to funnel a greater percentage of the pool of limited resources to injured plaintiffs, rather than to lawyers for plaintiffs and defendants. I want to be clear, however, that I am not here to suggest that this is a perfect bill. This bill represents a complex solution to a complex problem. A number of groups will be affected by this legislation, and it may be necessary to make changes to make sure that no one is unfairly disadvantaged by this legislation. But that said, I am confident that we can make any needed changes. We have a bipartisan group of Senators who have agreed to cosponsor this legislation, and the bill represents a sufficient improvement in efficiency over the existing litigation quagmire that there should be ample room to work out any differences. Finally, let me also note that this bill also plays a minor, but important role in preserving a proper balance in the separation of powers. I have been a strong and consistent critic of judicial activism. Judges who make legal rules out of whole cloth in the absence of constitutional or statutory text damage the standing of the judiciary and our constitutional structure. On the other hand, when judges issue opinions in which they recognize that the outcome sought by the parties might well be in the public interest, but nonetheless is not supported by the existing law, they reinforce the proper, limited role of the judiciary. Too often, federal judges are tempted to reach the result they favor as a policy matter without regard to the law. When judges succumb to that temptation, they are justly criticized. But when they resist that temptation, their self-restraint should be recognized and applauded. The Court in Amchem rightly recognized a problem that the judiciary acting alone could not solve. By offering a legislative solution to that problem the bill provides the proper incentives for courts to be restrained and reinforces the proper roles of Congress and the judiciary. In short, this bill provides a proper legislative solution to the asbestos litigation problem. It ensures that in an area in which extensive litigation has already established facts and assigned responsibility, scarce dollars compensate victims, not lawyers. I want to thank Chairman Hatch for his leadership on this issue and to thank my co-sponsors for their work on the bill. I look forward to working with them to ensure final passage of this legislation. The courts have completed their proper role in ascertaining facts and liability. It is time for Congress to step in to provide a better mechanism to direct scarce resources to deserving victims.

Mr. ASHCROFT

Mr. ASHCROFT. Mr. President, this morning there will be an immediate vote on the motion to invoke cloture on the motion to proceed to the so-called Vacancies Act. Following that vote, the Senate will resume consideration of the FAA authorization bill, with an almost immediate vote on or in relation to the Inhofe amendment regarding emergency license removal. Following that vote, the Senate will continue consideration of the FAA bill with amendments being offered and debated throughout today's session. Therefore, Members should expect rollcall votes during the day and into the evening in relation to the FAA bill or any other legislative or executive items cleared for action. Finally, the leader would like to notify all Members that there will be rollcall votes during Friday's session of the Senate. I thank my colleagues for their attention.

Mr. ASHCROFT

Mr. ASHCROFT. Mr. President, I rise to speak in favor of overriding President Clinton's veto of the partial birth abortion ban. I would like to begin by thanking the manager of the bill, the Senator from Pennsylvania, for his continuing and outstanding work on this important issue. No issue cuts to the core of our values like the issue of abortion. It challenges us to define our notion of liberty and calls into question our most fundamental assumptions about life. Today, we do not debate whether enactment of a measure will positively or negatively affect the welfare of some Americans. Today, we debate life and death. Last Congress and again last year, we voted to end the barbaric method of infanticide known as partial birth abortion. Both times, the President vetoed the ban. In so doing, he ignored the testimony of medical experts who assured us that this procedure is never necessary to preserve the life or health of the mother. He also dismissed evidence showing that thousands of partially-born children are routinely and electively killed across the country each year. The President not only accepted, but helped disseminate the lies and false testimony of pro-abortion advocates. Though the lies were finally exposed, the President demonstrated that his support for this procedure did not depend on the truth. The distortion reached a point where even his allies in the media could no longer defend the President's veto. Richard Cohen, an avowed liberal and pro-choice columnist with the Washington Post, concluded, President Clinton, apparently as misinformed as I was about late-term abortions, now ought to look at the new data. So should the Senate. . . . Late-term abortions once seemed to be the choice of women who, really, had no other choice. The facts are now different. If that's the case, then so should be the law. (Wash. Post, 9/17/96.) And yet, once again, the President's apologists have taken to the floor to defend the indefensible. This procedure is never necessary to save the life and preserve the health of the unborn child's mother. Four specialists in OB/GYN and fetal medicine representing the Physicians' Ad Hoc Coalition for Truth have written: Contrary to what abortion activists would have us believe, partial-birth abortion is never medically indicated to protect a woman's health or her fertility. In fact, the opposite is true: The procedure can pose a significant and immediate threat to both the pregnant woman's health and fertility. (Wall St. Journal, 9/19/96). Indeed, former Surgeon General C. Everett Koop stated, I believe that Mr. Clinton was misled by his medical advisors on what is fact and what is fiction in reference to late-term abortions. Because in no way can I twist my mind to see that the late-term abortion as described--you know, partial birth, and then the destruction of the unborn child before the head is born--is a medical necessity for the mother. Nor should we accept the myth that this procedure is rarely utilized. According to interviews conducted by the Record of Bergen County, New Jersey, physicians in New Jersey alone claim to perform at least 1,500 partial birth abortions each year--three times the number which the National Abortion Federation has claimed occur in the entire country. Mr. President, a legislative ban on partial birth abortions is constitutional. Indeed, allowing this life-taking procedure to continue would be inconsistent with our obligation under section 5 of the 14th Amendment to protect life. Although opponents will point to decisions in which activist federal judges invalidated state-passed bans, language nearly identical to that which is in this bill has been upheld in a number of courts. The ban's requirement that the abortionist deliberately and intentionally deliver a living fetus that is then killed implicate the partial birth procedure and no other. Judges who deemed the ban unconstitutionally vague ignored the text, and instead, saw fit to substitute their views in place of the views clearly expressed by the various state legislatures. Mr. President, I want to share a word of caution with those claiming that a ban on partial birth abortions is unconstitutional. If they truly believe that outlawing this procedure is impermissibly vague, the inevitable conclusion people will draw is that infanticide and abortion are indistinguishable. I do not see how this argument provides any solace to the defenders of this gruesome procedure. Finally, before this debate is through, I expect those defending the President's veto will say that opponents of partial birth abortion are really against all abortions. Well, Mr. President, I cannot speak for other Senators, but on that charge, I plead guilty. I believe abortion is the taking of innocent human life and has no place in a culture that values human life. I believe that precious human life should be nurtured in love and protected in law. For this reason, I support a constitutional amendment to protect human life. On January 20th of this year, I chaired a hearing in the Constitution Subcommittee on the 25th anniversary of Roe v. Wade. We looked at how the Supreme Court's decision failed to provide a framework for sound constitutional interpretation or to reflect the reality of modern medical practice. This latter failure is not surprising since the Court had neither the capacity to evaluate the accuracy of the medical data, nor a way to foresee the remarkable advances that would make the then- current data obsolete. From Dr. Jean Wright of the Egleston Children's Hospital at Emory University, we learned that the age of viability has been pushed back five weeks, from 28 to 23 weeks, since Roe was decided. We learned that surgical advances now allow surgeons to partially remove an unborn child through an incision in the womb, fix a congenital defect, and slip the ``pre-viable'' infant back into the womb. However, I think the most interesting thing we learned at the hearing is that unborn babies can sense pain in just the 7th week of gestation. Mr. President, these facts should help inform this debate. For instance: If we know the unborn can feel pain at seven weeks, why is it such a struggle to convince Senators that stabbing a six month, fully- developed and partially-delivered baby with forceps and extracting its brain is wrong? I realize, however, that not everyone agrees with my view on abortion. Indeed, I recognize that the American people remain deeply divided on this issue. But where there is common ground, we need to move forward and protect life. One issue on which there is consensus is parental consent. Most Americans agree that parents should be involved in helping their young daughters to make the critically important decision of whether or not to have an abortion. A recent CNN/USA Today survey found that 74 percent of Americans support parental consent before an abortion is performed on a girl under age 18. Last month, I introduced the Putting Parents First Act, which would require parental consent before a minor could obtain an abortion. Enactment of this legislation would allow Congress to protect the guiding role of parents as it protects human life. Today's vote--to end the cruel practice of partial birth abortion-- presents another opportunity for Americans on both sides of the underlying abortion issue to find common ground. The American people agree that a procedure which takes an unborn child, one able to be sustained outside the womb, removes it partially and then kills it is so cruel, so inhumane, so barbaric as to be intolerable. Indeed, after the procedure was described for them, fully 84 percent of the American people said Congress should outlaw it. Mr. President, legislatures in more than 20 states have followed Congress's lead and passed laws outlawing this procedure. Two-thirds of the House of Representatives already has voted to overturn the President's veto. And when this chamber voted, more than a dozen Democrat Senators joined us in attempting to override the veto. Mr. President, a consensus has formed. The American people and a substantial majority of their elected representatives in Congress want to eliminate this gruesome procedure from our nation's hospitals and clinics. The will of the American people should not be thwarted by the twisted science and moral confusion that has engulfed this Administration. Mr. President, let me close by saying that if we are not successful today in overriding the President's veto, this will not be the end of the debate. We will come back next year and we will vote again. We will continue to vote on this issue of life and death until the voice of the American people is heard.

Mr. ASHCROFT

Mr. ASHCROFT. Mr. President, I rise today to introduce a bill that furthers an important object of government--promoting religious liberty and the free exercise of religion. Specifically, I rise to introduce the Equal Access Improvement Act, a bill that would ensure that benefits currently provided to non-curricular school groups and community groups be extended on a non-discriminatory basis to all groups without regard to the religious nature of the organization. This bill reflects and reinforces an important principle that pervades the Supreme Court's decisions concerning religious liberty-- the principle of non-discrimination. The Supreme Court has recognized again and again that neutral laws that provide benefits without regard to the religious nature of recipients do not run afoul of our constitutional traditions. What is more, laws that specifically exclude religious entities from a class of beneficiaries are inconsistent with our Constitution's guarantee of the free exercise of religion. Laws that discriminate against specific religions or against religious organizations in general are incompatible with our nation's founding document and with a fundamental respect for people of faith. The bill would ensure that student prayer clubs are provided the same access to school facilities as other non-curricular school clubs. Our schools reflect many of the problems that plague our larger culture. Just as in the larger culture, prayer can play an inimitable role in dealing with violence, drugs, and the other challenges in the schools. Denying access to school facilities for student prayer groups, while similar groups are granted access, sends precisely the wrong message. Prayer is an answer. Prayer is not the problem. There is no reason to deny benefits to a group because they engage in prayer or because they have some other religious component. Nothing in this bill provides any special treatment to religious groups. The bill removes discrimination against religious groups and religious activities. It does not introduce any new discrimination in favor of religious groups. The bill enshrines the principal of neutrality that is at the heart of the Constitution's guarantees of religious liberty. The Equal Access Improvement Act builds on the work of the 98th Congress, which passed the original Equal Access Act. The bill extends those provisions to reflect subsequent Supreme Court and lower court decisions and to reflect the experience we have had with the Equal Access Act in the last fourteen years. I have consulted with organizations and individuals who have litigated cases under the Equal Access Act and incorporated many of their suggestions for improving the law. Specifically, the bill extends the existing law's provision ensuring equal access to meeting space to include equal access to school facilities, including expense reimbursement. Just as a school prayer club should not be denied access to a class room when it is open to the chess club, so too if the school pays to print a newsletter or pays for refreshments for one club, it should not discriminate on the basis of the religious content of the group's speech or activities. In the same way that the original Equal Access Act extended and reinforced the Supreme Court's decision in Windmar v. Vincent, 454 U.S. 263 (1981), beyond the public university context, this legislation would extend and reinforce the Supreme Court's decision in Rosenberger v. Rector and Visitors of the University of Virginia, 515 U.S. 819 (1995). The legislation also guarantees students a right to distribute literature without regard to the religious content of the literature. It guarantees access to community groups to school facilities on an equal basis without regard to the religious character of the group. Finally, the legislation extends equal access guarantees to intermediate school students. Let me emphasize that this bill, like the original Equal Access Act, creates no obligation for a school to provide meeting space or other facilities to any non-curriculum based group or any community group. The legislation simply provides that if a school does make its facilities available to non-curriculum based groups or to community groups, then the school cannot discriminate against other groups on the basis of the religious content of their speeches or activities. What is more, the legislation expressly preserves the ability of schools to enforce content-neutral policies denying or limiting access to all groups. Passage of this legislation would have many benefits. However, none more important than to reinforce the principle that nothing in the Constitution requires--or permits--the government to discriminate against groups on the basis of the religious nature of their speech or activities. As the Supreme Court recognized long ago, when the government accommodates religious practice and eliminates discrimination based on religion ``it follows the best of our traditions.'' Zorach v. Clauson, 343 U.S. 306, 314 (1952). I believe this bill also follows the best of our traditions, and I look forward to working toward its enactment. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. ASHCROFT

Mr. ASHCROFT. Mr. President, I thank the Chair. I come for the second straight year to offer an amendment to the Interior appropriations bill, and I send the amendment to the desk.

Mr. ASHCROFT. Mr. President, I ask unanimous consent that reading of the amendment be dispensed with.

Mr. ASHCROFT. I yield such time as the Senator from Indiana may consume.

Mr. ASHCROFT. I am prepared to go ahead.

Mr. ASHCROFT. Mr. President, I come to the floor for the second straight year to offer an amendment to the Interior appropriations bill. This amendment, while dealing with a relatively small amount of money--and I wince a little bit when I call the amount of money small, but in comparison to the multibillion-dollar funding bill it does address a small percentage of that bill--addresses a profound and fundamental issue that is before this body. Should the Federal Government be in the business of judging and funding art? Should the Federal Government be telling the rest of the country this is good art, or this is not good enough for the Federal Government, signaling to the rest of the country this art is superior or this art is worthy of your support while other art is not? While my efforts last year to eliminate funding for the National Endowment for the Arts were unsuccessful, I am compelled to continue to raise this issue, hoping to persuade my colleagues that the Federal Government should resign from its role as a national art critic. It seems to me that to have the Federal Government as an art critic which determines what type or types of art are superior to other types of art is not something that a free nation would want to encourage. Government should not be in the business of subsidizing free speech or putting its so-called ``Good Housekeeping Seal of Approval'' on certain pieces of so-called art. My amendment simply eliminates the $100 million appropriated by the bill to the National Endowment for the Arts, and it takes the available funds and puts them toward the renovation and preservation of our national park system. Since the last time we debated this issue, two relevant events have occurred regarding the National Endowment for the Arts. First, news about the play, and I quote the title here, ``Corpus Christi,'' which the NEA had agreed to fund, has become available; and, secondly, the Supreme Court of the United States has rendered a decision in the case of National Endowment for the Arts v. Finley. I would like to discuss each of these developments as well as other arguments and show how they support elimination of funding for the National Endowment for the Arts. The play ``Corpus Christi'' is merely the latest example of why we should defund the National Endowment for the Arts. In the last few months, we have heard a great deal about the play planned to be staged by the Manhattan Theatre Club in New York City. This play, entitled ``Corpus Christi,'' has generated a lot of controversy because of its content and because the National Endowment for the Arts approved a $31,000 grant to the theater to fund production of this play. Let me give a brief chronology of the involvement of the National Endowment for the Arts with ``Corpus Christi.'' The Manhattan Theatre Club first applied to the National Endowment for the Arts in October of 1995 to request funding for ``Corpus Christi.'' The theater's summary of the project activity stated as follows: MTC is requesting support from the National Endowment for the Arts for the world premiere of Terrence McNally's new play, CORPUS CHRISTI. The production is scheduled for fall, 1996 on Stage 1. I continue to quote: Mr. McNally will develop the rehearsal draft of the script in house at Manhattan Theatre Club during the next year. CORPUS CHRISTI is a play for 13 actors. Requested and matching funds will be spent on development, preproduction, rehearsal and the subscription run of the play at the Manhattan Theatre Club. That was the summation of the project activity included in the request for funding as submitted by the Manhattan Theatre Club. The NEA application asked the applicant to ``give a detailed description of the proposed project,'' including, among other things, ``the degree of development of the project.'' The Manhattan Theatre Club supplied the NEA with the following description: Spirituality has been one of the major themes in Terrence McNally's most recent plays at MTC. His next play, Corpus Christi, will be an examination of good and evil. He will use certain miracles in the life of Christ as the inspiration for the story, which will have a contemporary setting. * * * * * Corpus Christi is an extremely ambitious new work for Mr. McNally. MTC is proud to serve as the artistic home for this eminent American playwright. Our relationship with him is one of the most important and far-reaching models in our commitment to writers. We are confident that this project will break new ground for Mr. McNally as an artist, and that it will continue our tradition of providing innovative, important new plays to audiences in our community and beyond. That was from the Manhattan Theatre Club grant application of October 2, 1995. The NEA approved the grant to fund Corpus Christi. On June 14, 1996, the NEA informed the Manhattan Theatre Club that it had been awarded a $31,000 grant ``to support expenses for the development and world premiere of the new play, `Corpus Christi,' by Terrence McNally, as outlined in your application cited above and the enclosed project budget.'' On December 17, 1996, however, the Manhattan Theatre Club wrote the NEA requesting a scope change amendment to its grant so that it could receive Endowment funding for the New York premiere of Donald Margulies' ``Collected Stories,'' instead of for ``Corpus Christi.'' The Theatre Club gave this sparse description of the new project: ``Collected Stories'' follows the relationship between an esteemed writer, Ruth Steiner, and her promising student, Lisa Morrison. As Lisa gradually transforms from protege to peer, so does her relationship with Ruth. MTC has produced [Margulies'] `The Loman Family Picnic,' the Obie winning `Sight Unseen' and `What's Wrong With This Picture.' This continues a very important artistic relationship between [Margulies] and MTC. The National Endowment approved the scope change request. It switched the funding from Corpus Christi to the Collected Stories application. Based on that single paragraph, the NEA approved the scope change requested in January, 1997. It was after that time that we began to understand something about Corpus Christi. We had heard very little about either the Manhattan Theatre Club or Corpus Christi until the last few months. Recently we have begun to see the truth about Corpus Christi and the reason for switching from one pocket to the other the grant application. We have learned more about the play for which the National Endowment for the Arts awarded a grant--but did not fund--because the Manhattan Theatre Club, not the NEA, requested a scope change in its grant. On May 29 of this year, the New York Times reported that it had obtained a draft of the script for Corpus Christi, and stated that this draft, quoting from the New York Times: * * * suggests that rather than having specific phrases or scenes likely to cause controversy, it is the overall tenor, focus and point of the work that could be most at issue.'' While the Manhattan Theatre Club had described the play in its fall schedule as telling the story of ``a young gay man named Joshua on his spiritual journey'' and providing Mr. McNally's own unique view of the ``greatest story ever told,'' the New York Times columnist found a very different kind of story. From beginning to end, says the columnist, the script: * * * retells the Biblical story of a Jesus-like figure from his birth in a Texas flea-bag hotel * * * to his crucifixion as ``king of the queers'' in a manner with the potential to offend many people. Joshua has a long-running affair with Judas and sexual relations with the other apostles. The draft ends with the frank admission: ``If we have offended, so be it. He belongs to us as well as you.'' A writer for a London newspaper, The Guardian, gave even more descriptive details of the play Corpus Christi, which initially had been funded directly by the National Endowment and then, at the suggestion of the Manhattan Theatre Club, had its NEA funding switched to another project of the theater to avoid the direct funding of Corpus Christi. Most of the details given in The Guardian cannot be discussed on the Senate floor. However, the columnist concludes that, ``the play's wit rests on its deliberately offensive, knowing re- interpretation of the scripture.'' Once the truth about Corpus Christi became public, the NEA quickly disavowed any involvement with the play. On June 10, the NEA sent a letter to Members of Congress stating emphatically that ``the NEA is not in any way supporting development or production of Corpus Christi.'' Yet it can't be denied that the NEA approved funding for the play, regardless of the vague description given it at the time of the grant request. The NEA fully intended to use taxpayers' money to subsidize Corpus Christi. As a matter of fact, I believe that with the switching of the grant from the one pocket to the other of the Manhattan Theatre Club, the subsidy has the same impact. It was only at the later request of the Manhattan Theatre Club, not the NEA, that the money was diverted from Corpus Christi to the alternate project. I am glad that no Federal funding directly went to pay for Corpus Christi. But it is because the Manhattan Theatre Club, not the NEA, made the change or sought the change. And nevertheless, when you have a composite of activities of an organization like Manhattan Theatre Club, some of which are subsidized locally or paid for locally, others of which are subsidized federally, the capacity to maintain that particular play as part of the offering of the club is assisted and simply made possible by the continuing support of the National Endowment for the Arts. Despite all the past controversy, despite all the improvements to the NEA statutes, there is still something fundamentally wrong with public funding of the arts. This matter involving the NEA, the Manhattan Theatre Club, and Corpus Christi, demonstrates a number of problems we have when the Federal Government tries to fund art. First, the NEA does not exercise proper oversight in awarding grants. It seems incredible that the NEA would approve such a significant change in a grant request--from one project to a completely different one--based on a single paragraph description in a letter from the grantee. Is this an appropriate exercise of oversight? This action demonstrates how little the NEA knows about the projects it funds. It is supposed to judge based upon ``artistic excellence''-- but how, based upon the Manhattan Theatre Club's first description of Corpus Christi--or based upon the sparse description of ``Collected Stories''--can any person or review panel make an informed decision regarding artistic excellence? Second, the NEA's ease in allowing the Manhattan Theatre Club's scope change demonstrates that the agency chose to fund the project based upon the Theatre's reputation, rather than upon the merits of a particular project. Such an action seems to be allowing de facto ``seasonal support,'' which even the NEA admits is forbidden by law. Seasonal support was the concept of saying we would just simply, as the Government, give a particular organization, an art organization, an amount of money in which to conduct a season's activities. It would not be with reference to specific activities of the organization. ``We are going to fund their 1998 season, or their 1996 season, or subsidize the season.'' The Congress, because it wanted more supervision on the part of the NEA--it wanted assessments of the quality and nature of those items being subsidized--outlawed or otherwise made improper, season support. It is forbidden in the law. Yet, when the NEA allows organizations simply to switch grants back and forth, it obviously provides a basis for the same kind of problems to arise as would arise when you just simply turned over the money to the organization to support a season, without regard to the specific matters being subsidized. This situation also demonstrates the underlying problem with government funding of art. Government is not in a good position to determine what is art. When government funds art, it is put in a Catch- 22 situation. Many Americans, including myself, feel strongly that the Government has no business funding any theater that is going to openly and proudly denigrate the religious faith of a large segment of Americans. However, if one takes this view, he will be accused of censoring or making unconstitutional value judgments. My view is that the subsidization of art is wrong in the first place, but certainly not to provide funding is not to censor, but that is the kind of charge that is made. On the other hand, if you can't make value judgments based on the content of art, you will end up funding offensive and indecent materials. When the Government funds art, it will always have to make value judgments on what is art and what is not, which is not an appropriate function of Government. The only way to solve this problem is to get the Government out of the business of funding art. For those who say this is an issue of free speech, I ask you, How free is speech when the Government pays? Not very. The events surrounding the National Endowment for the Arts' funding of the Manhattan Theatre Club in Corpus Christi underscore the need for the Federal Government to get out of the business of funding art, which is a form of speech. Speech is not free if the Government funds it. If the Government says that some speech is better than other speech and prefers it by providing a subsidy, the Government is impairing the right of every citizen to speak and to express himself freely. Let me now turn to the second significant event that occurred since the last time we debated this issue on an appropriations measure, and that is the Supreme Court's recent decision in National Endowment for the Arts v. Finley. In National Endowment for the Arts v. Finley, the Supreme Court upheld the Federal statute directing the NEA to take into consideration ``general standards of decency and respect for the diverse beliefs and values of the American public'' in making grants. In the case of the National Endowment for the Arts v. Finley, I repeat, the Supreme Court upheld the will of the Congress expressed in the statute, signed by the President, directing the National Endowment for the Arts to take into consideration ``general standards of decency and respect for the diverse beliefs and values of the American public'' in making grants. While some have said this ruling will appropriately address concerns over the offensive attacks on religious groups and otherwise offensive material that has been funded by the NEA, this is simply not the case. In its opinion, the Supreme Court noted that the NEA has implemented the law ``merely by ensuring the representation of various backgrounds and points of view on the advisory panels that analyze grant applications.'' It is interesting to note that the Supreme Court upheld the Federal statute directing the NEA to take into consideration certain standards, and to see how the NEA had attempted to comply with the statute: by appointing individuals who might or might not represent those standards--``merely by ensuring the representation of various backgrounds and points of view on the advisory panels. . . .'' That was the response of the NEA. The Court also said that the decency and respect provision does not preclude awards to projects that might be indecent or disrespectful. And, in fact, the Court cautioned against any future use of the decency and respect standard to discriminate on the basis of viewpoint. Moreover, in response to the Finley decision, Chairman Ivey said that the ruling was a ``reaffirmation of the agency's discretion in funding the highest quality art in America'' and that it would not affect his agency's day-to-day operations. What you have is the Supreme Court affirming the Congress' effort to shape the decisions of the NEA for subsidizing art and to move those decisions away from the affronts to the religious traditions of Americans. But then you have the chairman of the NEA saying that the ruling of the Court was a ``reaffirmation of the agency's discretion in funding the highest quality art in America'' and that it would not affect his agency's day-to-day operations. Obviously, if the Congress' effort to provide a guideline for decency does nothing to affect the agency's day-to-day operations, we are going to have problems similar to the problems that came up surrounding the Corpus Christi funding. Hence, the Finley case does nothing to solve the underlying problem confronting us and, in fact, demonstrates that Government simply should not be in a position to determine what is art and what is not. There are a number of other reasons why we should stop funding the NEA. I question whether it is a proper role of the Federal Government to subsidize free speech as we do through the NEA. Government subsidies, even with the best of intentions, are dangerous because they skew the market toward whatever the Government grantmakers prefer. The National Endowment for the Arts grants place the stamp of U.S. Government approval on funded art. This gives the endowment enormous power to dictate what is regarded as art and what is not. A number of art critics and even artists themselves have observed this. Jan Breslauer, Los Angeles Times art critic, puts it this way. She says that the NEA's subsidization of certain viewpoints poses great problems--and I quote Jan Breslauer: [T]he endowment has quietly pursued policies rooted in identity politics--a kind of separatism that emphasizes racial, sexual and cultural differences above all else. The art world's version of affirmative action, these policies . . . have had a profoundly corrosive effect on the American arts--pigeonholing artists and pressuring them to produce work that satisfies a politically correct agenda rather than their best creative instincts. Jan Breslauer is basically saying that a subsidy which encourages art that the market would not otherwise respect or encourage corrupts the arts and entices people into producing a kind of art that they would not otherwise pursue for its artistically rewarding aspects. Rather, such a subsidy pressures them to produce work that satisfies a politically correct agenda. In my judgment, this is not only an inappropriate disposition of taxpayers' dollars. When we find out that the Government purchase of art corrupts the arts by pressuring artists to work in politically correct areas instead of in areas that best reflect their creative instincts, we have gone beyond damage to the taxpayer: we have begun to damage the artistic community itself. Joseph Parisi, editor of Poetry magazine, the Nation's oldest and most prestigious poetry magazine, I might add, said that disconnecting ``artificial support systems'' for the arts, such as cuts in NEA funding, has had some positive effects. Parisi has said that cuts in Federal spending for the arts are causing ``a shake-out of the superficial.'' What he is basically saying is when we cut subsidies for the arts, we knock out superficial art that is not of value. He goes on to say: The market demands a wider range, an appeal to a broader base. Arts and writers are forced to get back to markets. What will people buy? If you are tenured, if the Government buys, there is no response to irrelevance. Here is an artist who simply says, in effect, that a subsidy to the arts not only wastes taxpayers' money but it corrupts the artists themselves. In short, the Government should not pick and choose among different points of view and value systems and continue politicizing the arts. Garth Brooks fans pay their own way, while the NEA canvases the Nation for politically correct art that needs a transfusion from the Treasury. It is bad public policy to subsidize free expression. I would also like to point out that Congress has no constitutional authority to create or fund the NEA. It is true that funding for the NEA is relatively small, although it is hard to say that $100 million is small. It is small in comparison to the overall budget. Regardless of the amount of money involved here, elimination of this agency would send the right message that Congress is taking seriously its obligation to restrict the Federal Government's actions to the limited role envisioned by the framers of the Constitution. Nowhere does the Constitution grant any authority that could reasonably be construed to include the promotion of the arts. During the Constitutional Convention in Philadelphia, as a matter of fact, in 1787, Delegate Charles Pinckney introduced a motion calling for the Federal Government to subsidize the arts in the United States. Although the Founding Fathers were cultured individuals who knew firsthand of various European systems for public arts patronage, they overwhelmingly rejected Pinckney's suggestion because of their belief in limited constitutional government. Accordingly, nowhere in its list of powers enumerated and delegated to the Federal Government does the Constitution specify a power to subsidize the arts. And that was in the face of a specific proposal to do so at the convention, but was overwhelmingly rejected. There are a number of other reasons why we should eliminate funding for the National Endowment for the Arts, but time does not allow me to enumerate them. Suffice it to say, it is time to end the Federal Government's role of paying for and thereby politicizing art. Former New York Times art critic Hilton Kramer observed this phenomenon back in the early 1980s and spoke almost prophetically about how NEA funding could in fact harm the arts. He put it this way: The imperatives now governing much of the commentary devoted to art tend not to have anything to do with the real artistic issues, much less with the problem of artistic quality. They tend to be political. This, too, was probably inevitable given the role that [our] government now plays in our cultural life. I continue quoting: So quickly has this role acquired the status of something external and irreversible that there now exists an entire generation of artists, critics, curators and bureaucrats who have come of age believing that the life of art is inconceivable without it. One sometimes wonders what they think the life of art in this country was like before 1965. It may come as news to them to learn that American art did not begin with the formation of the National Endowment for the Arts, and that there were great art museums flourishing in this country long before there were agencies in Washington monitoring, directing and subsidizing their activities. Of all the changes that have occurred on the American art scene since 1965, this one may well prove to be the most fateful of all, for it already shows signs of making the politicization of art, and of our thinking about art, a permanent feature of our cultural life. And this, I think, is not good news for the future of American art--or indeed, for the future of American society. Thoughtful individuals understand the pollution that politics and government bring when they seek to subsidize art and favor some art over other art. We need to heed Mr. Kramer's warning and get the Federal Government out of the business of being a national art critic. My amendment would do this by eliminating funding for the National Endowment for the Arts and by putting available funds toward a more legitimate cause--preserving and maintaining our national parks. Our national park system, comprising 376 units and about 83 million acres, is America's most educational playground, teaching more than 270 million visitors per year about our Nation's history, about our culture, about our traditions, and our natural landscapes. Our national parks are often the choice for family vacations, school field trips, researchers, and foreign tourists. They represent an appropriate devotion of the resource which would otherwise go to subsidize art in a way which is counterproductive to the quality of art in our culture and many times is an affront to the understanding, beliefs, and closely cherished religious traditions of the American people. I urge my colleagues to join me in passing this important amendment, this amendment which would zero out funding for the National Endowment for the Arts and make the remaining available funds available to the national park system for renovation and restoration and maintenance of the parks. I yield the floor. Mr. GORTON addressed the Chair.

Mr. ASHCROFT. Mr. President, I rise to oppose the National Endowment for the Arts--not because I am against art, but because I favor art; not because I want to corrupt art, but because I want it to remain uncorrupted. Let me address some of the issues that have been raised. It was just said that we lack civility; so we need Government funding for the arts. We have seen that Government funding has frequently meant pornography, obscenity, attacks on religious faith, Mapplethorpe--I don't have to go further. We have had great art. We have had great civility in this country. But we have not had an increase of civility, as we have had the National Endowment for the Arts, since the 1960s. I challenge whether that is the case. Secondly, it was said that those who study art get better grades in school. Well, undoubtedly they do. But since the 1960s, when we started the National Endowment for the Arts, we have not seen an increase in the Scholastic Aptitude Tests, we have seen a decrease in them. Art is one thing. Federally subsidized art is another. It has been alleged that people are grateful for art welfare, that they come and they say, ``Thank you for the art money you give us.'' Well, I don't know of a single time when the Government hands out money that people don't gratefully come by and say, ``Thank you for the money you give us in our community.'' It has been alleged that the Founding Fathers such as John Adams liked art. Of course they liked art. They had better art to like in many circumstances than we do. It wasn't art corrupted by the Federal Government or a subsidy that demanded that the art be politically correct or that it be on the cutting edge of some social theory. The suggestion is that our founders wanted us to have great art. Yes, they did, but they didn't want it in the Constitution, and they specifically rejected authority in the Constitution to fund art. Let's just make it clear that the Federal Government does not need to be signaling to the art community or Americans what art is good art or what art is bad art. As a matter of fact, it even corrupts our foundations. About a year ago, the Orange County Register carried an editorial which said that so many foundations don't bother to assess what is going on anymore; they just look for where NEA is sending its grants, and they have their grants follow on. I think we would be better off if we urged people consuming or funding art in this country to be careful about it, to think about it in terms of its quality, to think about it in terms of its potential for greatness, to think about what it calls us to. Does it call us to greatness? The Federal Government, with its sense of politics, doesn't need to be signaling that some art is worthy, some speech is worthy, other art is unworthy, other speech is to be disregarded. It is not that we do not believe in art in America. All of us understand that the gifts of expression which God has given us are to be developed and they should be developed educationally and by individuals. But because art is expression and because it is related to values and because it is speech, it is inappropriate for the Government to say that some art is to be funded, some art is to be subsidized, and other art is to be disregarded, that other art is somehow unworthy and not to be provided merit. I believe that we will be a more civil society if we have a marketplace which determines what happens in the art community rather than a subsidy from Government. I believe we will be a well educated people, but it will be when we understand art for its value to us, not art that we receive at the hand of Government or art that becomes a part of a welfare state for the rich or for others in the community. I believe that art is an expression that ought to be regarded as an individual's choice.

Mr. ASHCROFT

Mr. ASHCROFT. Madam President, let me extend my appreciation to the senior Senator from the State of Missouri, Senator Bond, for having presenting this important resolution; and my thanks as well to the Senator from California, Senator Boxer. I was elated when I saw what we had all anticipated for so long--that Mark McGwire would learn uniquely how to pay the price for greatness, would achieve something that some had said could never happen. We watched and I watched in anticipation as I believe it was in the fourth inning last evening when the first pitch was, incidentally, not what I would call a home run pitch. It looked to me like it was a borderline strike zone, low and away, and Mark reached out and, on the low and away pitch, pulled the ball like a rifleshot over the wall in Busch Stadium in St. Louis. I stand today to commend him for his outstanding baseball. To see him and Sammy Sosa embrace and salute each other in a friendly kind of competition that brings out the very best is a story about what America really needs and ought to be--how we don't have to be, because we are opponents, enemies. Those two are opponents in most every way and in every sense of the word. But, my goodness, they are not enemies. They elevate each other's performance, and they bring out the best in each other. What a tremendous thing. Of course, I was so happy to see this happen in St. Louis, MO, a city whose baseball heritage is--well, frankly, it is just unparalleled; a city with baseball fans who understand the game, who know what it means to take a pitch, to hit behind the runner, to make the sacrifice. They know baseball. They know character. They saluted Mark McGwire last night, and properly so. I was very thrilled to see the Missouri fans be consistent in wanting to share the achievement with Mark McGwire, but not necessarily to take it from him, and the willingness of Missouri fans over and over again to give the baseballs back--to make them part of Mark's heritage and history, to make them part of the national treasure. It is kind of an inspiration at a time when some would lead us to believe that America is nothing but a place of greed. Too often, sports heroes themselves have participated in the idea that the memorabilia is so valuable that it is only to be sold. I think of these fans who would sort of teach some of our sports heroes lessons that the memorabilia is so valuable that it is not to be sold but it is to be shared. I salute those in St. Louis who decided that this part of American history was too valuable to be sold but it was so valuable that it ought to be shared. Let me make a few remarks about Mark. In the pictures--and I just hope the rest of America sees these pictures, if they haven't seen them--in the pictures we see a picture of what we need to be, how we need to think, and how we need to act. Perspective and balance are perhaps the most important characteristics of life. Knowing where you stand at the magic of the moment is certainly a valuable thing. Understanding where you stand in the perspective of history is a valuable thing. Having a respect for the future is a valuable thing. In just one tight little moment there on national television, as Mark McGwire finished rounding the bases, he showed us that he was a person who not only understood the magic of the moment--driving the ball over the left field wall and celebrating the incredible exhilaration and joy of that personal achievement, the crowning achievement of years of training, practice, and insistent persistence toward a goal--he understood the magic of the moment, but he also told us that he understood his place in history, because he went to the stands and he embraced the family of Roger Maris. Roger, of course, died tragically young as a result of cancer. But his family was there to understand not only his place in history but to understand that history marches on. Mark McGwire not only understood the moment but he understood his place in history. He embraced history. America needs again to have a lesson in embracing history, in respecting our past and understanding that it is only from the greatness of our past that we draw inspiration for surpassing events in the future. What a tremendous thing that picture was of Mark McGwire with those huge arms around the Roger Maris family. Then, perhaps as inspiring as anything else, there was the fact that when he rounded the bases and was trading high fives, really before he got into the serious commendations of the rest of his teammates, Mark picked up Matt, the future. He understood that, yes, the past is important, and the magic of the moment is to be cherished, but there is also always the future that is ahead of us. He picks up young Matt, and he elevates young Matt to a position above his father. What a tremendous picture that is. If we as Americans would have an understanding of our youngsters that we need to place them ahead of ourselves, place their interests above our interests, invest in the future, if we would, indeed, hold up our youngsters and elevate them to a place of understanding and the opportunities for greatness, what a tremendous lesson that would be. So I really have a degree of excitement that is difficult to contain about the tremendous lesson that we can all take out of the joy and exuberance of celebrating the achievements of one whose acts really just stun us and marvel us. There is just one last point. There were lots of people--I have been among them--who have said, ``Well, Babe Ruth's record and Roger Maris' record''--Babe Ruth, if you wanted to count one game at one game level, and Roger Maris at another--``would never be broken.'' I am kind of glad that Mark McGwire straightened me out on the breakability of those records, because I believe that maybe as much as anything else, Mark McGwire tells us that the best is yet to come, that every record in the book is one we should look to break, that America is not a place whose primary and monumental achievements are all behind us, but America is a place where the best is yet to come. Last night, Mark McGwire set a new record of 62 home runs. He might set another record the next time he bats. I am confident that he will set another record before the end of this season over and over and over again. I think part of the American spirit is such that we should all think about America as a place where the best is yet to come. When we learn to pay the price, maybe when we have the balance and perspective that Mark demonstrated, understanding the magic of the moment, respecting history, and having a full dedication to the fabulous future, maybe that is when we will begin to understand that the best is yet to come and we can be part of it. To Mark McGwire, to the fans of St. Louis, to Sammy Sosa, who happened to be there when it happened and who, with such class, saluted Mark, I say thanks for an inspiring game, which turns out to be a lesson teacher far bigger than just a game. I am delighted to commend them and thank them for the greatness that they remind us should be a part of all that America is and stands for. I yield the floor. Mr. BOND addressed the Chair.

Mr. ASHCROFT

Mr. ASHCROFT. Mr. President, I rise today to encourage my colleagues to join me in congratulating Alison Spencer Banks and Parker James Banks on the anniversary of their first birthday. It was one year ago today that their parents, Sarah and John, were blessed with the gift of life, times two. Alison and Parker will see a much different world in their lifetime, than either myself or my colleagues have witnessed in theirs. Alison and Parker will have to meet the demands of an ``information'' based culture and economy. As people of freedom reach for opportunity and achieve greatness, our nation prospers. A government that lives beyond its means and reaches beyond its limits violates our basic liberties, and the nation suffers. All of us assembled here in the United States Senate on this Fourth Day of September must keep in mind that the decisions we make today will shape the world that Alison, Parker, and their peers will inherit tomorrow. As elected leaders, we must teach them the values of our great democracy.

Mr. ASHCROFT

Mr. ASHCROFT. Mr. President, I wanted to take a few minutes to advise my colleagues that H.R. 2281, a bill to implement the World Intellectual Property Organization copyright treaties, has been adopted by the House, but in a substantially different form than the Senate bill to implement these treaties. The House version of the bill includes some improvements agreed to by representatives of the affected industries, but it also includes some extraneous provisions, which in some cases were negotiated without the full participation of important affected individuals. A number of my colleagues have expressed to my office their continuing interest in this legislation, and so I thought it would be helpful to provide an update on the legislative developments in the House, and to share with you some of my concerns about the many extraneous provisions added to the bill. On July 22, the Committee on Commerce filed its report on H.R. 2281, the Digital Millennium Copyright Act of 1998. In drafting the bill, the Committee used as the base text the bill approved by the Senate, and then made some substantive and clarifying changes. I understand that the Commerce Committee version of the legislation represents an agreed upon compromise by the content community and the fair use community. Moreover, I understand that these groups have agreed to support the agreement throughout the remaining process. Some aspects of this agreement concern important issues that I worked to have addressed in the Senate version of the bill. Let me describe a few of the most important aspects of the agreement. First, with respect to ``fair use,'' the Committee adopted an alternative to section 1201(a)(1) that would authorize the Secretary of Commerce to waive selectively the prohibition against the act of circumvention to prevent a diminution in the availability to individual users of a particular category of copyrighted materials. As adopted by the Senate, this section would have established a flat prohibition on the circumvention of technological protection measures to gain access to works for any purpose, and thus a system that some have described as the beginning of a ``pay-per-use'' society. Under the compromise embodied in the Commerce Committee's version of the bill, the Secretary of Commerce would have authority to address the concerns of libraries, educational institutions, and others potentially threatened with a denial of access to categories of works in circumstances that otherwise would be lawful today. Second, the Committee made an important contribution by eliminating the potential for misinterpretation of the ``no mandate'' provision of the bill. I had been very concerned that S. 2037 could be interpreted as a mandate on product manufacturers to design products so as to respond affirmatively to or to accommodate technological protection measures that copyright owners might use to deny access to or prevent the copying of their works. To address this potential problem, I offered an amendment providing that nothing in the bill required that the design of, or design and selection of parts and components for, a computing product, a consumer electronics, or a telecommunications product must provide for a response to any particular technological protection measures. The amendment reflected my belief that product manufacturers should remain free to design and produce the best available products, without the threat of incurring liability for their design decisions. Technology and engineers--not lawyers--should dictate product design. This provision reflected the working assumption that this bill is aimed fundamentally at so-called ``black boxes'' and not at legitimate products that have substantial non-infringing uses. The Commerce Committee has tightened this language even further making it crystal clear that nothing in this legislation should be interpreted to limit manufacturers of legitimate products with substantial non-infringing uses--such as VCRs and personal computers--in making fundamental design decisions or revisions. Third, as an important related matter, the Committee on Commerce reaffirmed my view that technological protection measures that cause ``playability'' problems may not be deemed to be ``effective'' under this legislation. As I pointed out in my floor speech just prior to final passage of S. 2037, ``playability'' problems may arise because technological protection measures may cause noticeable and recurring adverse effects on the normal operation of products. Adjustments may need to be made either in the factory or after sale to correct these playability problems. It was my view that the legislation did not make such adjustments illegal, and I was pleased to note that the Commerce Committee made this point explicit in its Committee Report. The Commerce Committee's report also included helpful language circumscribing the potential breadth of the bill by narrowly defining the types of technological protection measures that control access to, or the copying of, a work. In addition, the Committee of Commerce adopted specific provisions making it clear that the bill is not intended to prohibit legitimate encryption research. As my colleagues know, Senator Burns, Leahy and I have lead the effort in the Senate to ensure that U.S. business can develop, and export world-class encryption products. By explicitly fashioning an affirmative defense, the Committee has made an important contribution to our overall efforts to ensure that U.S. industry remains at the forefront in developing secure encryption methods. Finally, the Committee built on my efforts to ensure that this legislation would not harm the efforts of consumers to protect their personal privacy by adopting two important amendments. The first amendment would create incentives for website operators to disclose whenever they use technological protection measures that have the capability to gather personal data, and to give consumers a means of disabling them. The second amendment strengthened section 1202 of this legislation by making explicit that the term ``copyright management information'' does not include ``any personally identifying information about a user of a work or a copy, phonorecord, performance, or display of a work.'' In my view, these amendments help preserve the critical balance that we must maintain between the interests of copyright owners and the privacy interests of information users. In sum, the House version of the bill by and large reflects the substantial improvements proposed by the House Committee on Commerce. In his floor statement, Congressman Bliley of Virginia, made clear the importance the Committee attaches to the ``fair use'' and ``no mandate'' provisions included in the bill. He and others reaffirmed as well the Committee's report language with respect to the definition of technological measures and the inapplicability of the legislation to manufacturers, retailers, product servicers, and ordinary consumers when faced with playability problems caused by either protection measures or copyright management information systems. None of the Members of the Judiciary Committee present offered contrary views about these important provisions, which represent a delicate compromise agreement of the interested parties. I thus would hope we can assume that these matters have been definitively settled. Since the passage of the House language several issues have begun to arise that have either been caused by the drafting in the House, or as is more often the case, through the unintended consequences of outlawing technology. Perhaps the most troubling of these issues is making security system testing illegal and criminally punishable. Currently, the federal government agencies, companies, state governments, anyone with a computer system can hire professional consultants to survey and test their IT security systems for vulnerabilities. Two of the best known organizations that engage in this sort of consulting are Price Waterhouse Coopers and Ernst & Young, clearly two well-known and responsible corporate citizens. With the language currently in the WIPO legislation these critical services will no longer be legal. The impact will be destructive to existing businesses and to any future promise of electronic commerce. Moreover, without this type of beneficial testing, our country's critical infrastructure will be at risk from domestic and international hackers and cyber- terrorists. This effect must surely be unintended, as even those who support the current language would be at grave risk if our communications, security, and Internet systems were left without adequate protection. On August 4, the House adopted H.R. 2281 by voice vote. For reasons not explained on the floor, the bill contains a series of extraneous measures that have little or nothing to do with the underlying WIPO copyright treaties. I would call to the attention of my colleagues in particular sections 414, 416, and 417, as well as titles V and VI, of the bill. Unfortunately, the floor debate in the House offered little insight into the anticipated effect or scope of these provisions. They appear to have been added by the House Committee on the Judiciary, but none of the Members of the Committee described in any way the substance of these measures on the floor. Section 414 makes what ostensibly is only a clarifying change to section 107 of the Copyright Act. No one from the House Committee on the Judiciary, however, said a word on the floor about why this change to the ``fair use'' provision is necessary. Section 415 inhibits the continued development and the further introduction of new digital subscription music services. Again, I am left to wonder why this provision is necessary, or even whether it has been carefully considered by anyone here in the Senate. Apparently, the 1995 Act regarding digital performance rights in sound recordings was reopened to resolve ambiguous issues. What has resulted seems to be a two tiered approach to subscription service. One tier consisting of existing providers that may compete effectively and a second tier of providers without an up and running system who will be hobbled by many new restrictions and at a greater cost. Not surprisingly, this second group was not represented in the negotiations. The net result of this will be a significant advantage for incumbent providers that reflects a legislative advantage, not a competitive advantage. For those of us who believe that the market, not the government, should pick winners, this is a disturbing development. Even worse, there is a small group of companies who paid the government for spectrum based on the assumption that they could provide subscription service unencumbered, but because they have not yet provided service will now have to operate under these new, anti-competitive rules. The result is that the spectrum they purchased will have a vastly diminished value. This is precisely the type of regulatory taking that discourages and demoralizes the kind of investment and innovation the country needs to take full advantage of the promise of new technologies. Section 416 concerns the assumption of contractual obligations related to transfer of rights in motion pictures. No one from the House Committee on the Judiciary said a word on the floor about why this provision is necessary to WIPO implementing legislation. Section 417 makes what ostensibly is only a clarifying change to the first sale doctrine. No one from the House Committee on the Judiciary, however, said a word on the floor about why this change to the first sale doctrine is necessary, or what relation the provision has to a recent Supreme Court decision. Before the Senate is asked to act on any of these extraneous matters, we need to be convinced that the measures belong in this bill. Title V apparently sets forth the views of the House Committee on the Judiciary on how best to provide legal protection against misappropriation of collections of information such as databases. I understand that the Administration has indicated that it has serious reservations about this approach, including a concern that it may be unconstitutional. This is a matter the Senate Judiciary Committee plans to address in scheduled hearings. Until those hearings take place, I see no reason to endanger the WIPO bill with a potentially controversial issue that the full Senate Judiciary Committee has not had an opportunity to examine. Title VI would provide protection for certain boat hull designs. As in the case of the other extraneous provisions added in the House, no one from the House Committee on the Judiciary said a word on the floor about why this change to current law is necessary. At worst, this provision represents fundamental shift in the tradition and breadth of copyright law. At best, it is a dubious idea that was attached without discussion or consideration. The Senate should not include this extraneous matter in the WIPO bill without deliberation. I would hope all parties to the debate would recognize that much has been done to calibrate the WIPO copyright treaties implementing legislation. Each of us, working alone, would undoubtedly have produced a different bill. In fact, last fall I introduced a bill that I believe did a far better job of implementing the treaties and did not need dozens of carve-outs to deal with the problems created by the approach recommended by the Administration. In any event, we are now late in the session. Much important work has been done in the Senate, and I want to thank the Chairman and Ranking Member of the Judiciary Committee for working with me this spring to address my concerns with this bill. I think the House Committee on Commerce has made additional important contributions. This bill is not a perfect bill, but it is an important bill. Before taking any final action, we should eliminate the extraneous provisions in this bill, while preserving the true heart of the legislation: the WIPO legislation. However, once that analysis has been completed, I would hope we could move this legislation forward.

Mr. ASHCROFT

Mr. ASHCROFT. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. ASHCROFT

Mr. ASHCROFT. Mr. President, the oath of office taken by the President of the United States is majestic and simple; as a matter of fact, it is eloquent. The President simply swears that he will faithfully execute the office, the highest office of the land, and that he will preserve, protect and defend the United States Constitution. In its enumeration of his duties, the Constitution of the United States directs that the President ``take care that the Laws be faithfully executed.'' So the President is directed by the Constitution to ``take care that the Laws be faithfully executed.'' The core values of American self-government are concentrated in the Presidency. Do we expect the President of the United States to be a patriot? Of course. Not only do we expect that from the structure of our government, we have grown to expect it because that has been established as a precedent by President after President after President. Do we expect the President to love freedom? To serve the people rather than to serve himself? To act with respect for the rule of law? To uphold the idea in America that there are no kings, that the highest rank in this culture is the rank of citizen? To put the institution of the Presidency above his own personal interests? I think it is fair to say that all of us would respond to those inquiries with a resounding ``Yes.'' We do expect that. We have high expectations. Do we expect the President to be truthful? Yes. To keep his solemn oath of office? Yes. Certainly. These are qualities--the love of country, the commitment to public service, the obedience and supremacy of the law--that we expect in the behavior of the President. He or she is to be a national model for honesty, integrity, and respect for the law. It has been shocking to me that defenders of President Clinton have begun to suggest, however, that such is not the case, that our aspirations are without foundation, that somehow we are dreaming an impossible dream to think that the President would be a model. Indeed, we are told he is not even responsible for telling us the truth. Some of his defenders have begun to suggest that lying under oath can be acceptable conduct in a President or that the President is generally above the law and that the President would not need to honor, for instance, a lawful subpoena to a grand jury--the idea that somehow the President's power is so substantial that the President would not have to respond in the event that he were called. Jack Quinn, former White House counsel and a friend of many in this Chamber, argues in the pages of the Wall Street Journal that the President simply is not the subject of law in the same way as other citizens in an article entitled ``Clinton Can Avoid the Starr Chamber.'' He argues that the President does not have to comply with a grand jury subpoena. As new evidence comes to light, all the President's men work to keep America in the dark. And I believe that is wrong. I believe the concept of self-government carries with it an implicit need of citizens to know what is happening in government, what the circumstances are, what the conditions are. And certainly if a person is called upon by a part of our Government to provide truthful testimony, the failure to do so is a very serious offense. I believe that perjury is unacceptable conduct and that it is an impeachable offense. How can it be otherwise? It is not possible to-- and I am quoting the Constitution--``take care that the Laws be faithfully executed'' while deliberately slighting the law against perjury. It is that simple. I, for one, am fascinated by the prevailing conventional wisdom that Presidential perjury would be harmless error, while suborning perjury or obstructing justice would be much worse and an impeachable offense. The suggestion is shocking--that somehow it is OK for the President to lie but it would not be OK for him to tell someone else to lie, that the act itself would be OK and permissible, but telling someone else to do it would be an infraction. That is an utterly false dichotomy. Since when is it worse to try to get someone else to lie than to tell a lie yourself? Is it worse to try to convince someone else to steal than to steal yourself? Is it worse to convince someone else to cheat on their taxes than to cheat on your own taxes? Being under oath and lying under oath or convincing someone else to tell a lie under oath is criminal in either case and irreconcilable with the President's constitutional oath to take care that the laws of the land be respected, honored, and enforced. Terrible events appear to be engulfing the Clinton Presidency. The investigation of the President raises fundamental questions about the standards we should expect from a Chief Executive of the United States. If the House of Representatives begins an impeachment inquiry, the momentous machinery of the Constitution will raise the issue of Presidential conduct and misconduct to their highest levels. Because the prospect of Presidential impeachment seldom troubles this blessed Nation--and we can be grateful for that--there are fundamental questions about the President's standing under the law that have never been answered definitively. If we had impeachment processes going on every month, month by month, year by year, in virtually every Presidency, we would have a great body of law that told us exactly how things are to be done in this situation. That is how the rules of behavior in the legal system are developed, through precedent and experience. But we really do not have major impeachment experience. As a matter of fact, there has been one President who has undergone that kind of inquiry in the Senate, and that was well over 100 years ago. Moreover, in more recent times, when this body has considered impeachments for a variety of other, lesser officials, we have not conducted full-scale impeachment proceedings. So there are lots of issues that surround the potential of illegal activity by a President that have not been answered; some probably have not even been asked. It is time to clarify these issues, I believe, before the House addresses the momentous decision of whether to open a formal inquiry. I think the questions need to be answered, and I believe that we can begin this important discussion about the President's obligations to comply with the normal criminal process. I think we can begin to develop an understanding of how this should be conducted by holding hearings over the recess in the Constitution Subcommittee of the Senate Judiciary Committee. I believe we can invite scholars in to answer questions about whether the President is subject to prosecution; whether, indeed, the President is responsible for appearing before a grand jury in response to a subpoena; what level of conduct the President must compare to; what standard can he be measured by; in the absence of measuring up, are there things that can, should, or ought to be done? I might point out that very shortly we will be called to reevaluate the independent counsel statute which provides a basis for individuals being investigated when the normal investigatory process would be replete with conflicts of interest. I noted with interest that the assistant majority leader was on the floor here in the Senate Chamber earlier today talking about the fact that the Attorney General has been implored by the Director of the FBI to appoint an independent counsel to look into, investigate, and prosecute possible violations of the criminal laws regarding political contributions. Not only has she been asked to do that by the Director of the FBI, she has been asked to do that by the person she appointed in the Justice Department to look into the matter. His recommendation to her is, according to the reports is, that she ought to appoint an independent counsel, yet she has refused. I noted that the assistant majority leader indicated that her refusal and her continued refusal would become the basis for her resignation, in his view. I think all of these serious questions about the accountability of high-ranking executive branch officials beg resolution and they demand discussion. It is important that we resolve them and begin to have a full awareness of these potentials as we move toward the responsibility of reauthorizing or otherwise adjusting or dealing with the concept of the independent counsel's office in the independent counsel statute. Perhaps there is a single open question that is more demanding than any other of the open questions, and is certainly more relevant now, it appears, more than at any other time in history: whether a sitting President is subject to the regular compulsory criminal process. I think, as I indicated, former White House counsel Quinn's article in the Wall Street Journal says no. When we mean regular criminal process, we have to say up to and including prosecution. So the question becomes, Can a sitting President be prosecuted if he violates the law, or is the sitting President above the law? Or is the only remedy to remove him from office through the impeachment process, and then would he be liable for prosecution or is he liable for prosecution if the Congress decides to sit on its hands? You can imagine a situation in which a President was favored by a group of individuals in the Congress who simply didn't want to get involved or were allies of the President politically who said, ``No, there are a sufficient number of us to stop an impeachment procedure, so we won't allow it to happen.'' If the President were to persist in criminal behavior, it seems to me, there is a question in that setting about whether there is any remedy. Would a President be subject to prosecution if the House turned its back on obvious--obvious--criminal infractions, simply saying, ``We don't want any part of an impeachment proceeding?'' There is a pretty high level of political discussion now that says, even in the President's opposition party, that says the Republicans might not want this President to leave office to give his Vice President a jump-start on the next election. That is something that I don't buy. I don't believe in that. I believe that if there has been a serious infraction that merits impeachment, the inquiry must take place. Even if it is on the last day and the last 20 seconds of the Presidential term--Americans ought to do what is right. But there is a lot of discussion in the culture now that even an opposition party might not want to remove a particular official. So if there isn't any other remedy, does that mean that a person is free to violate the law? I think these are important questions. The question, then, is whether a sitting President is subject to the regular compulsory criminal process--up to and including prosecution-- or whether impeachment is the only avenue available for addressing Presidential wrongdoing? It is a serious question. It is a question that has been commented on by a number of individuals hypothetically in the past. In commenting on the options available to address Presidential crimes, many people seem to proceed on the assumption that the impeachment process is the exclusive avenue for addressing Presidential misconduct. Judge Bork reached this conclusion many years ago when the Justice Department considered the options for prosecuting Vice President Agnew. But Judge Bork's view is hardly the unanimous view of legal scholars. For example, Professor Gary McDowell has argued that the independent counsel does have the capacity to indict a sitting President. In the Wall Street Journal of March 9, 1998, Professor McDowell, who is a director of the Institute of the United States Studies at the University of London, says yes, in a rather well-written piece, yes, you can indict the President. Jack Quinn says, ``Clinton can avoid the Starr Chamber,'' basically saying you can't. Perhaps the most well-known constitutional scholar in America with whom I sometimes agree and with whom I often disagree is Professor Larry Tribe. Now, Lawrence Tribe, in his ``American Constitutional Law'' text, admits that the question must be regarded as an open one, saying that, with respect to whether or not you can proceed against a President in a criminal proceeding, ``the question must be regarded as an open one, but the burden should be on those who insist that a President is immune from criminal trial prior to impeachment and removal from office.'' Interesting. That is one of the most noted constitutional legal scholars in the United States saying that while he thinks the question is an open one, that those who want to say that there is immunity here have the real burden of making the case. This is a constitutional question of the highest order. The answer provides insights into whether the President is subject to the criminal laws applicable to the citizenry of America. The answer also informs whether a popular President--or a President whose party has a secure congressional majority or a President whose value to other individuals in office would make them reluctant to involve themselves in impeachment proceedings--could ever be held accountable for violations of the law. Perhaps early in a term a President is alleged to have done something, does the statute of limitations run, and if it runs before the term is over and the Congress decides to turn its head, does that mean there is absolutely no requirement that the President adhere to the law, respond to the law, be involved and uphold the law in the same way as other citizens are? I think these questions are very serious questions, and they are questions that demand resolution. I think an inquiry is important to begin the process of resolving these questions. There are also important subsidiary questions about whether the President is subject to a criminal process that should be examined. On August 17, the Nation will witness the spectacle of a sitting President providing grand jury testimony. He is going to do it pursuant to a negotiated agreement. The President will appear, but he is going to be available for questions for a single day and will have the benefit of legal counsel. By doing so, by agreeing, he has deferred a legal resolution of these issues. I am, frankly, happy that the President has decided, at least in this measure, to make himself available. This negotiated agreement for the President to appear for a single day has deferred a confrontation over the ultimate constitutional question of whether a sitting President must comply with a grand jury subpoena. But this question may not go away. In the event that a single day proves insufficient, for example, to resolve all the questions that Judge Starr has for the President, this unresolved question could resurface. The importance of this question also goes beyond the context of this particular dispute over alleged Presidential perjury, or a series of other alleged Presidential acts relating to perjury and obstruction of justice. I have here an opinion piece by one of President Clinton's former White House counsels, Jack Quinn--to which I have referred already--in which Mr. Quinn argues that the President is not obligated to comply with the ordinary criminal process and is free to ignore a grand jury subpoena--to simply say: I don't participate in enforcing the law. If I have information about a crime that might have been committed, or evidence about it, I don't have to do that, I am the President. That is a sweeping proposition, and I think it is one that the Congress should examine, particularly as we move toward the possible reauthorization of the Independent Counsel Act. I plan to bring in a number of constitutional scholars to address these critical issues and these yet unanswered questions. Frankly, I do not mean to prejudge these issues. However, they are too important to leave unexamined. The answers to these questions may well inform the progress of Judge Starr's investigation and shape the difficult question of what the House should do if a report from Judge Starr does not arrive until the eve of adjournment. The events of the past 6 months have raised many novel questions about the scope of the powers and privileges of the President. These are important questions and they are not easy to resolve. And in our system of separated powers, the answers to these questions also determine the scope and the power of Congress, and they will also determine, in some measure, the scope and the power of protection offered to the people. The answers will determine whether the people deserve to be protected by virtue of prosecuting those who offend the law even if Congress chooses not to be involved in proceedings which it had the opportunity to pursue, like impeachment. Congress cannot be a mere bystander in these debates. Congress has an important responsibility to use its investigatory functions to shed light on these important and unresolved questions. It is time for Congress to stop looking at the polls and to start looking at the Constitution. I hope these hearings will provide important insights into the extent to which the President must comply with criminal process. I believe every other American has the responsibility to comply, and it is a serious question to determine whether or not the President has the responsibility of being a citizen, as well as being the President. So I look forward to sharing this discussion with other members of the Constitution Subcommittee and to chairing these hearings to help clarify these issues at a time when we need this clarity, either in reformulating our view on the independent counsel statute, or as it relates to events that are unfolding at the other end of Pennsylvania Avenue. I believe that a discussion of these issues will advance our capacity to understand the appropriate balance that is necessary for the maintenance of freedom and the responsibilities that come with the privileges that we enjoy as free people. I yield the floor. Mr. GRAMS addressed the Chair.

Mr. ASHCROFT

Mr. ASHCROFT. Mr. President, families are the cornerstone of America. Individuals from strong families contribute to the society. In an era when nearly half of all couples married today will see their union dissolve into divorce, I believe it is both instructive and important to honor those who have taken the commitment of ``till death us do part'' seriously, demonstrating successfully the timeless principles of love, honor, and fidelity. These characteristics make our country strong. For these important reasons, I rise today to honor Lonnie and Regina Wright of Goshen, Arkansas, who on August 4, 1998, will celebrate their 50th wedding anniversary. My wife, Janet, and I look forward to the day we can celebrate a similar milestone. The Wrights' commitment to the principles and values of their marriage deserves to be saluted and recognized.