Robert Bennett

Mr. BENNETT

Mr. BENNETT. Mr. President, I will quote this relating to S. 1. They say: The bill is reasonable, workable and long overdue. It has our unanimous bipartisan support, without weakening amendments. Signed by Howard Dean, Governor of Vermont, chairman of the National Governor's Association; George Voinovich, Governor of Ohio; and Benjamin Nelson, Governor of Nebraska. They are the co-lead Governors. Carolyn Long Banks, the president of the National League of Cities; Randall Franke, commissioner of Marion County, OR, the president of the National Association of Counties; Jane Campbell of the Ohio House of Representatives, president of the National Conference of State Legislatures; and Victor Ashe, mayor of Knoxville, president of the U.S. Conference of Mayors. They are not talking about S. 993. They are talking about S. 1, which they want passed without weakening amendments. I am relatively new to this body. I find it fascinating to go through the learning experience that comes to a freshman Senator. I was here on the floor for my first 2 years, and I learned about the filibuster. Indeed, I participated in the filibuster. I participated in and supported the filibuster that killed the President's stimulus package, and I did it because I thought it was the right thing to do and also a majority of the American people agreed. It was, frankly, good politics. It helped us win the election because we stood against something that the majority of the American people were against. I participated in a filibuster on land use issues relating to the ownership of land in my State. Once again, I believed in it, we won it, and most of the people in my State and the Western States agreed. It redounded to our political benefit to participate in that filibuster. I participated in a filibuster on campaign reform because I thought the bill, as written, supported one party to the detriment of the other. I believed in it. I understood that. The thing I have not understood about this debate, and I hope when it is over someone will explain to me, is why the minority party has chosen to mount the same kind of filibuster that we mounted on the minority 2 years ago against a bill that is supported by all of the Governors, all of the mayors, the President of the United States and a large number of the Members of their party.

Mr. BENNETT. I yield myself 4 minutes. Mr. President, I have enjoyed this debate. I have enjoyed many of the things I have heard. The Senator from Michigan told us that S. 993 had near consensus from mayors, Governors, et cetera, and spoke very proudly of it. I was an original cosponsor of S. 993, and I was proud of it. I will point out to the Senator from Michigan, and everyone else, that S. 1 continues to enjoy exactly the same consensus, indeed, if anything, the consensus is stronger from the same people. I will quote a letter addressed to the original cosponsors of S. 1, the Unfunded Mandate Reform Act of 1995, telling us: Thank you for your leadership in listening to and acting on the nationwide call of State and local governments to pass S. 1. I will not read the entire letter. I ask unanimous consent that it, and other letters in support of S. 1, be printed in the Record at the conclusion of my remarks.

Mr. BENNETT. I thank the Chair and reserve the 1 minute. Exhibit 1 January 10, 1995. To The Original Co-Sponsors of S. 1, the Unfunded Mandate Reform Act of 1995: Thank you! Thank you for your leadership in listening to and acting on the nationwide call of state and local governments to pass S. 1. As the elected leaders of all state and local governments, we appreciate your support for this critical legislation. We unanimously and strongly support S. 1 without weakening amendments. We are urging every Member of the 104th Congress to join you in support of S. 1 and the future savings it will bring to every taxpayer we serve. S. 1 will bring an open, accountable, and informed decision making process to future federal proposals and regulations that impact state and local governments. S. 1 applies the same pay-as-you-go rules that Congress now requires for the federal budget to any mandates it would impose on state and local governments. The bill is reasonable, workable, and long overdue. It has our unanimous bipartisan support, without weakening amendments. Thank you again for your support. Sincerely, Howard Dean, M.D., Governor of Vermont, Chairman, National Governors' Association. George V. Voinovich, Governor of Ohio, Co-Lead Governor on Federalism, National Governors' Association. E. Benjamin Nelson, Governor of Nebraska, Immediate Past President, Council of State Governments, Co-Lead Governor on Federalism, National Governors' Association. Carolyn Long Banks, Councilwoman-at-Large, Atlanta, Georgia, President, National Leagues of Cities. Randall Franke, Commissioner of Marion County, Oregon, President, National Association of Counties. Jane Campbell, Assistant Minority Leader, Ohio House of Representatives, President, National Conference of State Legislatures. Victor Ashe, Mayor of Knoxville, Tennessee, President, U.S. Conference of Mayors.

Mr. BENNETT. Mr. President, I wish to quickly acknowledge, I mean no implication of dishonor among the Senators who have been working hard. I still see some indication that some Members of their party have done some things that look and talk and walk to this Senator a bit like a filibuster. I yield the remainder of the time to the Senator from Idaho.

Mr. BENNETT

Mr. BENNETT. Madam President, will the Senator yield for further comment?

Mr. BENNETT. I have examined the same issue, I will say to the Senator, because I feel very strongly that private enterprise should not be put at a disadvantage. I think the misunderstanding comes from some of these private entities who think that passage of this legislation will automatically mean Federal funding of local facilities. In fact, what is happening now, at least in my State, is that the Federal Government is putting a mandate on the public facility in the State and then requiring by virtue of that mandate local taxpayers to come up with the money. So that the public facility is in fact funded, but it is funded on the backs of local taxpayers or State taxpayers rather than Federal taxpayers. And if there is going to be a competitive disadvantage, it may well be the Federal Government says we are not going to come up with the money and the locality says we can in fact achieve the standards more cheaply, and therefore we will have less funding at the local level, and thereby lowering the cost of the public facility. Having been in the competitive business world most of my life, I do not shy from competing with somebody who is dealing with honest costs. And I think the way this legislation will work will be to make the costs more honest rather than dishonest. And it is a fallacy to think that passage of this legislation is automatically going to mean a flood of Federal funding to local projects. I do not believe that will be the case. Therefore, I intend to support the legislation without that amendment in spite of my strong private industry background.

Mr. BENNETT. Thank you, Mr. President. Mr. President, I rise in support of S. 1. I was one of the sponsors of the legislation in the previous Congress. I am delighted that the leadership has chosen to make this a top priority in this Congress because I think it is a fundamental reform issue that many people in the United States have overlooked. When I first decided to run for the Senate, I discovered somewhat to my dismay that my name recognition around the State was about 3 percent with a 4-percent margin of error in the poll. In other words, in spite of all the work that I thought I had been doing in the public eye and in the public service, governmental work and so on, and being the son of a Senator and thinking that everyone would know who I was, I discovered no one knew who I was. So I set out to try to widen my net of acquaintances and, at the same time, my understanding of what would be involved if I should be elected. I instructed my campaign staff therefore to set up appointments with me for all of the mayors that would see me. I thought if I at least got the mayors of the small towns around Utah, and the larger towns, to say, ``This fellow Bennett came in to see me and talked about running for the Senate,'' that that would be a beginning of a network of conversation. I have always felt that word of mouth is the best kind of advertising, and at this point in the campaign, that is what I needed. I remember very well the first mayor that I went to see. He looked at me as if I were a little bit strange for being in his office. And he said, ``Why are you here?'' I said, ``I am going to run for the Senate.'' He repeated the question. ``Why are you here?'' I said, ``Well, Mr. Mayor, if I should be successful this quest, I have a feeling that you are the closest to the people and you are in the position to tell me what I should be doing in Washington. So I am here to ask you what it is you would say to a U.S. Senator if you had one in this kind of one-on-one circumstance as part of my education to be here.'' I was disingenuous enough that I did not disclose the campaign purpose of my being there. I just asked that question directly. The mayor said, ``Well, you know, if I had a U.S. Senator in front of me with his undivided attention, the one thing I would say to him is stop the unfunded mandates.'' Mr. President, I did not have the slightest idea what he was talking about. I had no idea what an unfunded mandate was. So I had to pretend to be a little smarter than I was and draw him out and get him to explain it to me. He explained it to me in these terms. It was very clear. He said, ``This is how an unfunded mandate works.'' He said, ``The Federal Government gives us an order and then does not send us any money to carry it out, which means that we have to raise the taxes to comply with the order. The Federal Government gets the credit for solving the problem and we get the bill. The taxpayer gets mad at us and votes us out of office, and the people in Washington are the ones who did the whole thing.'' I said, ``Well, Mr. Mayor, I thank you very much. I appreciate that. I will certainly do what I can if I am elected to the Senate to deal with unfunded mandates.'' I went on to my next appointment, and sat down with the next mayor and had the same kind of conversation. ``What are you doing here?'' ``Well, I am here to have you tell me something about government.'' He scratched his head and said, ``Well, the most important thing you could do for us if you get to the U.S. Senate is get rid of unfunded mandates.'' I said, ``Mr. Mayor, I've heard that before. I know all about that.'' I went on to the next mayor and the next mayor and the next mayor. Pretty soon, I decided I was going to see how long it was going to take for me to run across a mayor who did not bring up unfunded mandates as his number one issue. You know, Mr. President, I never found one. All the mayors I went to see in that process, and I went to see a lot, without any prompting on my part, just by asking the open-ended question, ``What do you see a Senator being able to do for you,'' every single one of them--Democrats, Republicans, liberals, conservatives, people who would vote for me, people who told me they could not possibly support me--every single one of them spontaneously raised the issue of unfunded mandates. So when I arrived here in the Senate, I decided I had better try to do something about unfunded mandates. Who is one of my class members in the freshman class of 1992 but a former mayor, this time the mayor of Boise outside of my State. I did not have to have a conversation with him. I knew what his No. 1 priority would be, he having been a mayor. His No. 1 priority was unfunded mandates. We got together as a freshman class. There was the mayor of San Francisco, Senator Feinstein. What was her No. 1 priority? It was unfunded mandates. There was a member of the local government in Chicago, Carol Moseley-Braun. What did she have on her mind? Unfunded mandates. There was the former Governor of New Hampshire, Judd Gregg. What did he talk about? Unfunded mandates. Well, it was very clear that I did not have anything to add to this debate. These were experts who had worked at the local level, and understood it. And I was very happy to line up behind Senator Kempthorne, the former mayor of Boise, as he brought this zeal to this fight. I commend him, as others have done, for the doggedness with which he has pursued this. I can tell you, Mr. President, from my experience with the other mayors in my State, I know that if any of them were to be catapulted into the U.S. Senate, they would have had the same doggedness that Senator Kempthorne has displayed--probably not the same skill that he has displayed, because he has done a superb job of hanging onto this issue, keeping it from being diluted, keeping it from being stolen from him, and keeping our focus on it. So, I share that bit of personal history with you, Mr. President, to make it clear why I am here in support of this bill. One of the issues that has been raised with respect to this, which in my opinion is a red herring trying to get us off the focus, has been the issue of fairness in terms of the public and private sector, the suggestion that there is something about this bill that would make the public sector more competitive than the private sector. Mr. President, I have spent most of my career in the private sector. I have bid on government jobs. I have bid against government for particular assignments. I have sold things to the government. I am familiar with the way things go back and forth between the private sector and the public sector. I can tell you from that personal experience that this issue of competitiveness is indeed a red herring. If a private company is going to compete with a public entity for garbage disposal, for water treatment, for schools--there are some circumstances in the country where private schools have competed with public schools--in every case, the private entrepreneur goes into it knowing that he or she is going to be competing against public funds. The issue is, where do the public funds come from? Going back to the first conversation I described with my first mayor, this requirement, and we have to raise the taxes to fund it because they do not give us any money, and the taxpayers get mad at us. This bill is not going to magically create the money at the Federal level. This bill is going to say to the local mayor: You get to make the right choice as to how to solve this problem, and if you solve it with public funds raised by your taxpayers, you are doing exactly the same thing you are doing now. The difference is that you get to choose what makes sense. I have a favorite example of the way these mandates work does not make sense. In Utah, we have the world's largest salt sea. It is called the Great Salt Lake. I do not know why the Great Salt Lake is a lake and the Dead Sea is a sea when the lake is about 10 times bigger than the sea. But that is neither here nor there. That is the way the language works out. The Great Salt Lake is absolutely undrinkable, uninhabitable. It is as foul a place to be, in terms of an environment for a human being, as you can find. I have one of my constituents who says the Great Salt Lake is good for two things only. No. 1 is sunsets. We have spectacular sunsets over the Great Salt Lake. No. 2 is salt. They block it off in salt fonts and go out with bulldozers and gather the salt together and process it, and we sell salt in the world's salt market. That is all it is good for. I tell you that because of the example of the unfunded mandate. Here is a city along the front of the Wasatch Mountains, between those mountains and the Great Salt Lake. Here comes the Federal Government and says to the city: ``Your water purification system is inadequate.'' The city says: ``What? We have never had any cases of any disease of any kind in our city. Our water purification system works perfectly for the residents in our city.'' ``No, no,'' says the powerful, all-knowing Federal Government. ``It is the people downstream from you that are getting water from you that is not drinkable. So you must change your water purification plant in such fashion that it not only purifies the water so that your citizens can drink it, but that the citizens downstream from you can drink it. The citizens downstream from this city are the brine shrimp in the Great Salt Lake, because the water that comes out of the water system of this city ends up in the Great Salt Lake, where it is instantly rendered undrinkable by Mother Nature. But this fella says to me: ``The Federal Government is requiring us to spend $600,000 to clean up our water to the point that it is drinkable just prior to its being emptied into the Great Salt Lake, where it instantly becomes undrinkable.'' That is an example of a stupid mandate. He says, ``If the Federal Government wants to give us $600,000 to pay for that facility, I guess we will take it, but, Senator, it really makes more sense for the Federal Government to trust us to make the right decision and stop the mandate altogether.'' In all of my touring of all of those mayors, Mr. President, I never met a single mayor who was committed to poisoning the population of the city. I never met a single mayor who needed to be prevented from doing that. Yet, the Federal Government comes in with these mandates saying, you do not know what is best for your citizens. We will mandate these things to be done, and we will require you to raise your taxes to pay for it. One final point, Mr. President. I discovered, as I got into this, that it was not just the mayors. I was talking, in the course of the campaign, about my newfound knowledge in the unfunded mandate field with some members of the State legislature. One looked at me and said: ``Unfunded mandates will bankrupt this State within 5 years.'' He said: ``We are being forced to come up with money to meet the Federal mandates, and I tell you, I sit there in the State legislature and I see the financial trends. And unfunded mandates will bankrupt this State within 5 years.'' I thought, holy mackerel, that is really serious. Then I looked at him and I decided he is an alarmist. There is something wrong with him. He cannot possibly be right. So I went to another member of the State legislature that I knew to be a very reasonable, solid guy and I said: ``Tell me about this unfunded mandates thing. So and so over here says in 5 years the State of Utah will be bankrupt from the burden of unfunded mandates.'' ``No, no,'' he says. ``He is much too alarmist, no.'' I said, ``I am glad to be reassured.'' He says, ``No, it will take 7.'' This is a serious problem, Mr. President. It is something that could threaten to bankrupt my State in between 5 and 7 years if it is not turned around, and that is something we must address. So I close by, once again, paying tribute to the leadership, the tenacity, and the skill of the junior Senator from Idaho, who remembered from whence he came as the former mayor of Boise and brought that experience to the floor, brought that experience to this body and has almost single-handedly brought us to the point where we are debating this vital issue in this vital way. I do, at the same time, wish to recognize the leadership of the Senator from Ohio [Mr. Glenn]. I have had the privilege of serving on the Governmental Affairs Committee when he was its chair, being present at the first hearing which he held where Senator Kempthorne, Senator Moseley-Braun, Senator Feinstein, and others, came and testified on this issue. I remember his commitment that this would become a priority and he would move it. Even as we pay tribute to Senator Kempthorne and the work he has done, we must recognize that if it had not been for the cooperation and leadership of Senator Glenn, we could not have laid the predicate in the last Congress that makes it possible for us now to take this action in this Congress. This is a battle in which I am happy to be a soldier, because I recognize those who lead have more experience and background. I want to make it clear that the soldier status does not in any way diminish my enthusiasm for the battle. I will be here and will do whatever I can to see that this is done. I yield the floor. Mr. GLENN addressed the Chair.

Mr. BENNETT

Mr. BENNETT. Mr. President, I was sitting in my office catching up on paperwork when I was literally caught by the announcement that the distinguished former chairman of the Energy and Natural Resources Committee would not seek reelection. I had to come over and add my voice to those that have already been raised in tribute to this fine man, this outstanding Senator and, for me, close friend. As I came to the Chamber, I was reminded of his words to the former ranking member on that committee, Malcolm Wallop, who made a similar announcement. As Senator Wallop came into the committee, Senator Johnston looked at him and said, ``You did not ask my permission.'' I had the same feeling here. He did not ask my permission. Not that he would have or should have. This is, obviously, a personal decision. I am sure from seeing how well he makes decisions, that it is the right decision. I wanted him to know, and the country to know, that I will feel a sense of personal loss. I am not saying goodbye as some have said, because I am looking forward to the next 2 years. I was sorry that, in the reorganization of the committees, I missed going back on that committee by exactly one slot. If there had been one more slot, I would have been there as I have been there the last 2 years. And I look forward to going back there when the next 2 years are gone. It will not be the same without Bennett Johnston. A year ago, just about this time, we were in China, Vietnam, Indonesia, and Thailand together. I said to him, after one of the meetings we had had with the head of state on that trip, ``Mr. Chairman, if you want to run for Secretary of State, I will be happy to handle your campaign.'' He is an outstanding diplomat, an outstanding servant of the citizens of the United States. He has 2 years left to go. We will not turn this into his funeral eulogy because I know he will spend the next 2 years in the same kind of service that he has rendered in the past 22. I am one who believes in term limits. I think we need to open up the process to get new blood in. When people say to me ``Yes, but won't you lose some people that are precious to the United States?'' I always say, ``Yes, we will. That is the down side of term limits.'' Then I go on to list, privately, of course, some people that I think term limits would be good for. Bennett Johnston is in the first group. That is, those who would be precious to the United States who would be lost, and for whom, if I could, I would waive the term-limit requirement. He is a fine gentleman, a fine friend, a fine Senator. I look forward to 2 more years at his side and, indeed, at his feet, for he has taught this junior Senator a very great deal. I look forward to learning a very great deal more. Mr. President, this is a time of pride for the United States that we can look back on the career of one of our finest. I did not want to let the occasion pass without adding my voice to those that have been raised in tribute to this fine public servant. I yield the floor. Tribute to Senator Johnston

Mr. BENNETT

Mr. BENNETT. Mr. President, I ask unanimous consent that morning business be extended for an additional 5 minutes beyond the 2 minutes already allocated.

Mr. BENNETT

Mr. BENNETT. Mr. Chairman, I also wish to set the record straight about another provision in the interstate banking law. Section 114 establishes a agencies issue interpretive rulings or opinion letters that preempt certain State laws. I have learned that some are arguing that section 114 and its legislative history somehow overrule, or cast doubt upon, interpretations of the word ``interest'' by the OCC, the FDIC, and the OTS. These interpretations have been repeatedly cited by many courts. Mr. Chairman, it is my interpretation that nothing in section 114 or the legislative history of the interstate banking law overrules, or casts doubt upon, these prior interpretive letters issued by the Federal banking agencies. The savings clause in section 111 makes this abundantly clear. Indeed, it is my understanding that section 114 addresses only procedural matters, and was not intended to alter or establish any principles of substantive law. May I ask the Senator from Delaware whether he agrees with my interpretation?

Mr. BENNETT. Mr. President, last year we worked hard to ensure, after careful consideration by the Senate Banking Committee, the Senate, and the conference committee, that banks providing credit to out-of-State borrowers would be unaffected by other changes made in the new interstate banking and branching law. We considered the interests of the States, financial institutions, and regulators, and consumers on this very important point. Unfortunately, and notwithstanding the care we took with the words we used, it has come to my attention that a recent court decision has misinterpreted several provisions of the interstate banking law. I want to set the record straight so that there is no confusion or misunderstanding. Mr. Chairman, the intermediate appellate court in Pennsylvania issued its decision on December 14, 1994, in the so-called Mazaika case. In a 6-3 decision, the court held that a national bank located in Ohio was not authorized by section 85 of the National Bank Act to collect certain credit card charges from Pennsylvania residents--charges that the court acknowledged to be lawful in Ohio. Mr. Chairman, every other final decision by other courts on the merits of this very question has concluded that such charges were authorized by section 85 to be collected from all borrowers, anywhere in the Nation, as long as they were legal in the bank's home State. In its decision, the majority noted the enactment of the Riegle-Neal Interstate Banking and Branching Act of 1994 and said that the interstate banking law ``expressly provides that a national bank is bound, as to operations carried on in a particular State, by the consumer protection laws of each State in which it operates any branches.'' The majority was referring to the applicable law provision of the interstate law. Mr. Chairman, it is my view that the Mazaika majority made several mistakes in its reference to the applicable law provision of the interstate banking law. These matters should be clarified. First, the applicable law provision in the interstate law applies only and by its terms when a bank actually has branches in a second State. And even in such circumstances, the applicable law provision subjects the interstate branch of a bank to certain State laws only where those laws are not preempted by Federal law. This provision has no bearing on or relevance to the Mazaika case because, in that case, no branching by the Ohio bank into Pennsylvania is involved. Moreover, the law has long been settled by the courts that section 85 is preemptive. Second, the Mazaika majority simply ignored the very important savings clause in the interstate law. The savings clause is part of section 111 of the interstate law. Mr. Chairman, I well recall that this provision was included in the Senate bill at the request of the Senator from Delaware for two reasons. The clause makes clear that a branch of a bank in one State may charge interest allowed by that State's laws in making loans to borrowers in another State even if the bank has branched interstate into the borrowers' State. In addition, the Senate Banking Committee and the Senate very much wanted this provision in the law in order to ensure that a bank's ability to collect all lending charges had not been affected by other provisions of the interstate law--such as the applicable law provision. The savings clause provides that nothing in the interstate law affects section 85 of the National Bank Act and also section 27 of the Federal Deposit Insurance Act, which relates to charges by State banks. The savings clause therefore preserves the preexisting lending authority of banks to collect all lending charges in accordance with home State law, without regard to the changes in branching authority made by the interstate law. Does the Senator agree with my understandings that the majority in Mazaika seriously misconstrued the interstate banking legislation?