Howard Berman

Mr. BERMAN

Mr. BERMAN. Mr. Chairman, I reserve the balance of my time.

Mr. BERMAN

Mr. BERMAN. Mr. Chairman, I support the Gallegly amendment, although in a conference committee I want to make sure, if this bill reaches a conference committee, that what he is proposing here is truly feasible. But I would like to just go construct my notions of why I think this is important. No one in this House, as far as I know it, is in favor of illegal immigration. There are some people who believe in open borders, but I have not heard anyone in this House ever articulate that. Now the issue is, are we going to stop with border enforcement, or are we going to have some interior enforcement? I am sorry to say that my friends in the majority do not seem to want to put a lot of resources into investigating industries that historically recruit undocumented workers, but now we have the question of the employment. As the gentleman from Massachusetts [Mr. Frank] has just mentioned, employer sanctions were established to make it illegal to hire someone who is not here legally. The voluntary program now in the bill has none of the privacy protections, none of the discrimination protections, none of the protections against mistakes that the Gallegly amendment has. The Gallegly amendment says if this system wrongfully terminates a person from a job, they have a remedy to recover their lost compensation. The Gallegly amendment provides for testers which can go out and make sure that any employer is doing this across the board as to all of his employees, not just the ones who might have a foreign accent. It has the protections, it deals with the issue of making sanctions enforceable, and the only question now for me which I hope to learn about in the months ahead as we deal with this legislation is, is it feasible? I am not sure it is, but I think we should give this approach a boost because it is the right approach, at least in concept. I urge an ``aye'' vote.

Mr. BERMAN

Mr. BERMAN. This may have been raised already, and if it is, I apologize. I see a potential for a problem in this in that we certainly do not want to discourage victims of violent crimes or robberies or burglaries from reporting their conduct to the police. I am a little concerned, if this were fully implemented, it may end up having serious crimes not reported, which will lead to criminals not being apprehended. So I just wanted to raise that particular issue, Mr. Chairman.

Mr. BERMAN. Mr. Chairman, I thank the gentlewoman for yielding me time. Mr. Chairman, I would just like to follow up on the points made by the two gentlemen from San Diego. First of all, as to the comments by the gentleman from California [Mr. Bilbray], in theory there is a great deal of validity to what the gentleman says. But the notion that undocumented aliens, illegal aliens, are not here in this country working, is a fiction, because employer sanctions in their present state without verification is a fiction. So the notion that everyone who is here undocumented has children on AFDC is nonsense, pure nonsense. The GAO reported back in 1992 that 2 percent of the funds are going to the children of undocumented aliens, two percent of the funds. That puts it in perspective. Remember what the gentleman from California [Mr. Campbell] said. If you want to get to this issue, propose a constitutional amendment to change the 14th amendment. Do not create a big government, cumbersome, guardian process to deny U.S. citizens their rights. Change the Constitution which makes them citizens. I will fight it with every ounce of my energy, but that is the honest way to go.

Mr. BERMAN. Mr. Chairman, I rise in opposition to my friend's amendment. Except for possibly emergency medical services, the only other public benefit that I think it is wrong to deal with on this basis is public education, for all the reasons the gentleman from Montana just eloquently stated. But the real question I have for the gentleman is why do you think, if your amendment passes and becomes law, why do you think that there is any chance in the world this will be more seriously enforced, more effective in doing what the gentleman wants to do, even though I think what you want to do is wrong, than employer sanctions are? Without an adequate verification system in place, this is all a game. Proposition 187 was a game because it sent a message, but it had nothing to do with verification. And until you do something here on verification, you have already collapsed a mandatory verification system; you have an amendment in a minute to wipe out any verification system; and then you are going to say we were tough. We got them out of the schools. You are not going to get anybody out of the schools without verification. That is why this amendment standing alone is really empty.

Mr. BERMAN. Mr. Chairman, will the gentleman yield?

Mr. BERMAN. Mr. Chairman, I rise in opposition to this Chabot amendment. What I would love to see, Mr. Chairman, is to get the rollcall of the Chabot amendment and the people who voted in favor of striking the verification system, and then the people who vote for the Gallegly amendment to knock all the children of illegal immigrants out of the public schools, and the Bryant amendment, to report all the names of illegal immigrants to the INS, and all these other Prop 187 amendments, and match the two, because there will be a lot of people who vote ``yes'' on Chabot and then ``yes'' on Gallegly on the public education and ``yes'' on Bryant, and then we will know how rhetorical the discussion on doing something on illegal immigration is; because they will have sat there and gone back to their districts and said, ``We did something about public services, employment, and illegal aliens. We just knocked out any way of ever enforcing it,'' the Chabot amendment. I have great respect for the gentleman, I have listened to him both in committee and on the floor, and I know he feels this passionately, but it is intellectually flawed, because there should be one additional provision. It should repeal employer sanctions. If we do not have verification, we have no meaning in employer sanctions. We have the present situation. Mr. Chairman, I cannot think of what creates a more cynical public than the notion that the Government saying, as we said in 1986, ``We are doing something about this,'' and then denying the mechanisms to try and do anything about it. That will only intensify the hostility between the public and their elected officials. If employer sanctions are going to mean anything, Mr. Chairman, verification is at the heart of what we are supposed to do. The problem with the amendment of my friend, the gentleman from Texas, is that ideally I think we have to do some pilot projects before we can implement a full 800-telephone verification system. But the problem with the amendment of the gentleman from Texas, which Chabot seeks to strike, and which Gallegly seeks to strengthen in a subsequent amendment, is that it has none of the protections that we put in. And as the gentleman from Ohio [Mr. Chabot] pointed out, it may be voluntary for employers, but it is mandatory for employees. There are no protections on privacy, there are no protections on errors, there is no enforcement of discrimination in that particular program. A mandatory system at the point where it is feasible and implemented, if done right, will stop discrimination which now exists, because the person who wants to comply with the law is not going to accept the documents coming in under the I-9 requirements, is going to assume that person is illegal and is going to discriminate, not because that person is racist, but because that person does not want to run afoul of employer sanctions and does not understand that employer sanctions have no meaning under the present situation. It can protect against privacy innovations, just like we did in 1986 with the legalization program, where we had INS legalize 1.8 million people and never once give the names of the people that came forward to the enforcement wing. You can protect against all of those kinds of things. The amendment in front of us is bad because it, without repealing employer sanctions, renders employer sanctions totally meaningless. The base language is bad because it has none of the protections we need. That is why the Gallegly amendment, I am forced to conclude, is the only feasible fashion for dealing meaningfully with this whole subject. Mr. Chairman, I urge a ``no'' vote on the Chabot amendment.

Mr. BERMAN

Mr. BERMAN. Mr. Chairman, if the gentleman will continue to yield, those figures do not reflect legal admissions through the legal immigration system. The gentleman is lumping in the legalization program for people who are already here. The Department of State administers the granting of visas for people to come into this country. Their figure is the accurate figure. It is about 800,000. I do not want to belabor this point. There is a lot I can say in response, but I will wait for my own time.

Mr. BERMAN. Mr. Chairman, I thank the gentleman for yielding, and for all his work on this bill. Mr. Chairman, the gentleman indicated it is very important to get the figures accurate. I agree. I just want to cite for the Record that I do not think his comments on the level of immigration during the first 5 years of the 1990's is any where near the accurate figure. The Department of State, in a letter dated March 15, last Friday, responded to a series of questions that I asked, as follows. The first question was: ``What was the average annual immigration level for the period 1992 to 1995?'' The average annual immigration level, 1992 being the first year that the 1990 changes went into effect. ``By immigration level,'' I said in the question, ``I mean the total of all legal immigration categories, including refugees.'' The answer that the Department of State said was, ``The annual average immigration level for the period 1992 to 1995, based on total immigrant admission figures, is about 801,000,'' not 1 million or 1\1/ 4\ million, to come to a 5 million----

Mr. BERMAN. It does. It is substantially less than that. That would be an average of 1 million people a year. In 1991 it was under the old law, it was less. The new law, which went into effect in 1992, the average was 800,000. That is barely over 3 million for those 4 years. It is substantially less. I just wanted to clarify the Record. That includes, Mr. Chairman, refugees as well as all the other legal immigration categories. What it does not include are about 50,000 legalization categories, which are people already in this country. I just wanted to indicate that the Department of State, which has the most accurate records on legal admissions, indicates the figure is significantly less than 1 million a year.

Mr. BERMAN. Mr. Chairman, will the gentleman yield?

Mr. BERMAN. First, Mr. Chairman, I want to say both to the gentleman from Texas [Mr. Smith], chairman of the Subcommittee on Immigration, and to the gentleman from Texas [Mr. Bryant], the ranking Democrat, that we do have some strong differences on several aspects of this bill. But I think the debate undoubtedly during the next couple of days can get very heated on a subject which is very passionate. I just want to start out indicating that I have the greatest respect for both gentlemen from Texas. These are not Pat Buchanan clones sitting on the House floor that would seek to build walls around this country. Their proposal, while I think is much too drastic a cut in legal immigration, still recognizes legal immigration. I do not believe that it is motivated by racism or xenophobia, and I compliment both of them because they have become experts in the subject and believe sincerely in where they are coming from. We just have a fundamental difference. The rates of immigration as a percentage of the American population now are far lower than they were at any time in the 19th or early 20th century, far lower than they were at that particular time. The bill before us, we will see charts undoubtedly during the debate which will talk about backlog visas and other visas to try and show that the cuts are not severe. The fact is the cuts in legal immigration are close to 30 to 40 percent. The backlog visas that are given for the first 5 years or so are essentially to legalize people who are already here, who are protected under family unity, who came in under the legalization program. These are people who within the next year or two, in any event, will be legalized through the normal legalization process because they will have naturalized and be able to bring in spouses and minor children. The harshest part of this bill is it essentially ends, and I say that advisedly, it essentially ends the right of U.S. citizens to bring in adult children and parents. It also wipes out any right to bring in siblings notwithstanding the fact that there are so many people who have waited so patiently, who have followed the rules, who have accepted the appropriateness of following the law and waited in line. This just cuts them off at the knees and says, ``We don't care.'' Why do I say the gentleman from Texas undoubtedly will agree that his bill wipes out the right to bring in siblings and protects no one in the backlog so that a person who has been waiting 15 years to come into this country, if his number does not come up before the effective date of this law, will be wiped out? But he will argue with me about parents and adult children. But I think if one reads the bill, he will accept my view of why I say this bill effectively eliminates that right. With respect to parents, initially the bill created no guarantee for parents, and the State Department came in to our subcommittee and said, and there has never been a bit of refutation of that, that the spilldown effect from spouses and minor children and the using of those slots would eliminate every parent from admission for the next 5 years. So in full committee, the chairman of the subcommittee offered an amendment to create a floor of 25,000. But along with that floor, the bill contains provisions to say that that parent has to have come in where he has already secured a health insurance policy and a long-term care insurance policy. I venture to say there are not 10 people in this House of Representatives that will have long-term health care insurance. Where you can possibly find it, except for being in Congress, which is not necessarily long-term insurance, but the fact is I do not know where you can find it, but if you can find it, the average cost of that kind of policy is $9,000 a year. With children, the exception to the flat ban on adult children is unmarried, never married, between the ages of 21 and 25, if they have been claimed as a tax deduction, for which there are only two countries in the world in which an American citizen is allowed to claim a tax deduction for supporting a child abroad, Canada and Mexico. This bill wipes out adult children. There will be an amendment to correct this sponsored by the gentleman from Michigan [Mr. Chrysler], myself, the gentleman from Kansas [Mr. Brownback], the gentleman from California [Mr. Dooley], the gentleman from Virginia [Mr. Davis], and the gentleman from Illinois [Mr. Crane]. I urge the Members to look at that. Legal immigration is good for this country. I also at some other point, if there is time left in general debate or later on in the amendments, want to speak to the Pombo amendment which as we sit here and trumpet how we are going to stop illegal immigration, and here I am joined by my colleagues from Texas, would create a massive loophole for a new agricultural guest worker program which would flood this country with foreign guest workers at a time when we have a massive surplus of farm labor creating just the kind of job displacement that both gentlemen from Texas have spoken about.

Mr. BERMAN

Mr. BERMAN. Mr. Speaker, I rise in support of this resolution. I wish to congratulate Mr. Cox both for introducing it and for his willingness to perfect it further in committee. I share the concern that we send a strong message to both sides of the Taiwan Strait that differences be solved peacefully. Efforts by the People's Republic of China in recent days to intimidate the Taiwanese voters in their presidential elections, I think, have boomeranged against China. Not only have these bellicose moves helped President Lee in his election race but a recent poll indicates that support for reunification with China has dropped to 16 percent from 20 percent in July when the missile tests began. The military exercises have unsettled the entire Asian region, calling into question China's interest in regional peace and stability. I hope that China will soften considerably its current hardline position toward Taiwan. I note that President Lee has already offered an olive branch, calling recently for more trust and personal contact between China and Taiwan. A substantial basis exists for a strong relationship across the Strait. Recent official economic figures show a 9-percent growth in Taiwanese investment in China in January and February. After the Taiwanese election, I hope more concrete steps will be taken by both sides to strengthen their economic and other contracts. Finally, the Clinton administration deserves to be congratulated for the strong and forceful position it has taken. Characterizing the missile tests as irresponsible and reckless, the administration has dispatched two carrier battle groups to the region. We have a clear interest in securing peace and stability in Asia and protecting the right of passage in international waters. That is the same message we are delivering to both China and Taiwan in this resolution.

Mr. BERMAN

Mr. BERMAN. Mr. Chairman, I thank my ranking member for yielding me this time. Mr. Chairman, I voted to report the original Hyde bill out of committee. I have trouble with some of the provisions in the bill, but I emphatically believe that a compelling case has been made that Federal law enforcement agencies need to be granted expanded means to attack the scourge of terrorism, both international and domestic. I believe that our freedoms as well as those enjoyed by the citizens of other democratic nations cannot survive if we do not create new tools to apprehend and punish those who committed crimes with the intent of intimidating, coercing, or retaliating against government conduct. Our ultimate objective must be, of course, to prevent such crimes from being committed in the first place. The most recent appalling attacks in Jerusalem and Tel Aviv only reinforce my deeply held conviction that our democratic Government must be given new means to fight international and domestic terrorism. But the bill before us today is not the bill I voted for in the Committee on the Judiciary. First of all, the Republican majority decided to jam into this bill, in the name of fighting terrorism, their long-sought objective of, for all intents and purposes, abolishing the ancient writ of habeas corpus. Former Attorneys General Levi, Katzenbach, Richardson, Civiletti, each of them has written to us saying that nothing is more deeply rooted in America's legal traditions and conscience. The writ of habeas corpus is the guarantor of our constitutional rights, the bedrock of our Federal system which has always provided an independent Federal court review of the constitutionality of State court prosecutions. Shame on those who invoke the names of innocents slaughtered in Oklahoma City or Jerusalem in their quest to obliterate the writ of habeas corpus. I cannot support lawlessness in the police station or the courtroom anymore than I want to tolerate it in the hands of terrorists. The substitute, the Conyers-Nadler-Berman substitute, deletes the habeas corpus provisions to which I profoundly object. In addition, second, we now have the passage of the Barr amendment which has deleted the very antiterrorism provisions which do belong in this bill. The Barr amendment deletes the prohibition on fund-raising for terrorist organizations. And can my colleagues believe this? It deletes the expedited removal of alien terrorists from this country. For those who have concerns about some of these provisions, the answer is not to gut them as the Barr amendment did, but rather to include and improve them, as Mr. Conyers has done. I want to express my very deep gratitude to Mr. Conyers for his willingness to include these provisions in this substitute and for his willingness, with his deep concern for civil liberties, to balance and apply that in the context of our need to do more on terrorism. We provide in this substitute for judicial review of the designation of an organization as terrorist. We provided for the expedited removal of alien terrorists under existing procedures for dealing with classified information which preserve a defendant's right to counsel and to confront the evidence against him or her. I also strongly support the provision in the Conyers substitute which deletes impediments in current law to the ability of Federal law enforcement organizations to initiate investigations of suspected material support to terrorists. I believe that the scourge of terrorism requires a careful recalibration from time to time of the balance between civil liberties concerns and law enforcement authority. In this case, I believe that speech on behalf of terrorist organizations can be, not necessarily are, but they can be, an indication that the individual is engaged in material support for terrorist activities. Under certain circumstances I believe it is appropriate for investigations to be opened, not to be prosecuted for that speech, not be thrown in jail, but for merely an investigation to be opened. I am concerned that the current law bars such investigations unless the evidence of terrorist activities virtually suffices to commence prosecution. That means people who should be prosecuted would not be I have a proud record of support, I believe, for civil liberties. When the opponents of this legislation and all of its excessive forms have pointed out potential infringements of civil liberties, I have listened. As the American Jewish Committee has so eloquently stated, the war on terrorism must be and can be carried out without undermining our most fundamental protection. But when these same organizations that opposed the original bill of the gentleman from Illinois [Mr. Hyde] and supported the Barr amendment go so far as to minimize the very threat of terrorism itself, they lose all credibility. Ours is a living constitution which has thrived for two centuries because in its strengthened vibrancy it has accommodated the realities of modern American life. One of those realities tragically is terrorism. Mr. Chairman, I urge my colleagues to vote for the Conyers substitute. It wages war on terrorism while preserving precious American rights. Should the substitute fail, I will be voting against H.R. 2703, and I urge my colleagues to do so as well.

Mr. BERMAN

Mr. BERMAN. The gentleman is correct in that this bill does not deal with a number of the foreign aid issues. But where the gentleman is wrong is this was an opportunity to get rid of the harsh and unfair restrictions on the existing program.

Mr. BERMAN. Mr. Speaker, I rise in opposition to the bill and urge the House to defeat this measure. I would like to just put this in the context of the history that I am aware of since I was elected to this House back in 1982. In every single Congress, with the Democrats controlling half of that in the House the entire period of time, the Republicans controlling the Senate for the first 4 years that I was here, a Republican President for the first 12 of those 14 years, every single time the chairman of then the Committee on Foreign Affairs, working with the ranking member, and on a bipartisan basis, put together a State Department authorization bill that was bipartisan in nature, that had the support of the administration. Each and every time the State Department authorization bill was passed by a Congress, in some cases split, in some cases Democrat, and signed by a Republican President. Every effort was made to provide more executive branch flexibility in the operations of our foreign affairs, not less. At the same time, in the area of foreign aid, with the exception of one Congress, each and every Congress that I served in in this House, and again, that is since 1983, the House passed a bipartisan foreign aid authorization bill that frequently got waylaid over in the Senate. One year we got a bill. In one of those Congresses on the issue of family planning and the abortion controversy, we failed here, but again, the fundamental approach was to do it on a bipartisan basis. When this bill came through this Congress last year, there was not one whit of effort to try and do a bipartisan bill. Everyone but 12 Democrats voted against this bill. Now we come forward and we hear foreign aid has been dropped, but that is not quite an accurate statement. Foreign aid has been dropped except where a Member of the majority on the committee had a particular priority, so foreign aid was dropped, except we eliminated housing guarantees. Foreign aid authorization was dropped, except where we wanted to write something in on North Korea, or on humanitarian corridors, or on MacBride principles. We cherry-picked a few issues, the majority did, put them into a bill that was supposed to be just a State Department authorization bill, and then shoved it to the administration without one moment of time to talk about the pros and cons of forced consolidation against executive branch wishes. Should ACDA be consolidated and folded into the State Department or should it be separate? There is an argument, maybe it is not persuasive, but at least it takes a second to pause and think, that we want an independent arms control proliferation agency that is not going to be run by the State Department with a direct voice to the National Security Council to raise issues of arms control and nonproliferation when economic pressures that might exist otherwise cause the State Department to be less clear on those kind of issues. Should USIA be consolidated? There is at least an argument that having an independent agency involved in articulating the American point of view and a voice of truth and freedom to the world should not be under the direct control of our diplomatic services. Maybe it is not a compelling argument, but it is an argument. Should AID, the agency primarily focused with development assistance, be subordinated into the diplomatic service? Maybe, maybe not, but there are some good arguments against doing that, but the majority refused to spend time discussing the debate. They wanted to take home a trophy. They decided, as one Member of the majority just said on this floor. If this bill passes, all of you can go home and say you collapsed one of our international relations agencies. It is a trophy. No substantive arguments underlying the reason, just let us do it to do it, to hell with the executive branch, who cares what they want; forget the tradition of bipartisan approaches to this issue. I think that is wrong. I think we ought to be providing sufficient resources, sufficient flexibility, and an underlying bipartisan approach to these critical issues around the world and the critical issues that are funded by the 150 accounts. This bill does not do it, so I urge a ``no'' vote.

Mr. BERMAN. Mr. Speaker, will the gentleman yield?

Mr. BERMAN

Mr. BERMAN. I rise to oppose this bill. I do this reluctantly. There is much in this legislation that I support and have supported in the past. I am not, for example, opposed to codifying the embargo on Cuba. There is no doubt that Castro is a dictator and murderer whose rule should be vigorously resisted. Nor am I opposed to the extraterritorial nature of this legislation although I wish such unilateral American action was not necessary. I would greatly welcome international cooperation in dealing with the world's dictators as well as with other threats to international stability. However, I must vote against this bill. When this bill was marked up in the International Relations Committee, I introduced an amendment which carved out an exception for some penalties for certain activities. My amendment was accepted by all sides--including proponents of this legislation, but then, unfortunately, it was dropped in conference. I do not understand why my amendment was dropped. It was not contrary to the intent of the sponsors of this legislation. My amendment retained due process protection already contained in the Trading With the Enemy Act [TWEA] and kept exceptions for news gathering, research, and clearly defined educational, religious, and human rights activities. In 1992, when we passed similar legislation, we added substantial civil penalties to Treasury's enforcement arsenal to prevent a surge of business or tourist travel to Cuba. We all agreed and continue to agree that trips to acquire a winter suntan or make a quick buck should be discouraged. However, we wanted to make sure of a couple of things before we broadened Treasury's authority to punish such travelers. First, we ensured that due process protection was given to individuals or firms, including an agency hearing and we also ensured that there would be a couple of categories of travel that would be off limits to civil fines. We agreed that visits by journalists, researchers, human rights, and religious organizations--visits in other words whose legal tender was information, not hard currency--were in our national interest, since they undermined rather than buttressed the Castro regime. Now this bill omits all exceptions to civil penalties in the Trading With the Enemy Act and removes the administrative due process provision we wrote into the TWEA, undermining the fairness and credibility of civil sanctions. I believe the Government should err on the side of liberally interpreting American's right to travel abroad, particularly when it serves our national interests. This legislation does not serve those interests and therefore I cannot support this bill.

Mr. BERMAN

Mr. BERMAN. Mr. Speaker, almost 1 year ago I extended my congratulations to Morton Gould who was honored with the 1995 Pulitzer Prize for music composition. Sadly, Mr. Gould passed away on February 21, and today I wish to pay tribute to him. Mr. Gould was one of the century's most celebrated American composers and conductors, whose career spanned eight decades. A child prodigy, he composed and published his first work at the age of 6, and was a pioneer of live radio broadcasts at the age of 21, as the star, host, and conductor of long-running radio programs on the Mutual and CBS Radio Networks. His compositions explored and elevated all aspects of American style by integrating folk, blues, jazz, gospel, and other elements of music. Orchestras throughout the United States and the world have performed his compositions and they have been enjoyed by all. He has been honored with numerous awards including a Grammy award and 12 Grammy nominations, the 1985 Medal of Honor for Music from the National Arts Club, and the Kennedy Center Honor in 1994 for a lifetime of contributions to the performing arts. He also served on the board of directors of ASCAP for over 36 years and was its president from 1986 to 1994. Morton Gould was not just a wonderful musician, he was also a warm and humorous man. I enjoyed working with him over the years, and am saddened by his loss. I offer my most sincere condolences to his family. Mr. Gould's memory and spirit will forever live on in his music.

Mr. BERMAN

Mr. BERMAN. Mr. Speaker, the conference report appropriately includes a strong, independent role for the Justice Department in evaluating applications by RBOC's to provide long distance service. The FCC must consult with the Attorney General in determining whether RBOC entry is in the public interest, a requirement designed to ensure that the FCC gives proper regard to the Justice Department's special expertise in competition matters and in making judgments regarding the likely marketplace effects of RBOC entry into the competitive long distance markets. In fact, acknowledging the importance of the antitrust concerns raised by such entry and to check any possible abuses of RBOC market power, the bill specifically provides that the FCC accord substantial weight to the DOJ's views on these issues. I am pleased that we have secured the Justice Department's role as the country's antitrust expert by ensuring that its position is given serious substantive consideration on the merits by the FCC as well as in any ensuing judicial proceedings. However, I am gravely concerned that provisions in title V of the conference report, in particular, sections 502 and 507, are unconstitutional. In section 507, by extending to the internet clearly unconstitutional underlying law, we are enacting an unconstitutional abortion gag rule. As a member of the conference committee, I would like to review the procedural history of the adoption of the online indecency prohibition in section 502. The House conferees first voted to approve a substitute amendment offered by Representative Rick White which contained a Miller-adapted ``harmful to minors'' standard, rather than an indecency standard as the basis of liability under Section 223(d) of Title 47. The harmful to minors standard would have criminalized exposing children to online pornography such as Playboy or Penthouse without chilling entirely nonpornographic, but offensive, expression. However, the House conferees then approved by a 17-to-16 vote an oral amendment offered by Representative Goodlatte to replace the ``harmful to minors'' standard in the White substitute with a then- unspecified indecency standard. After that vote, Representative White put forward a proposal to supporters of the Goodlatte amendment to define the indecency standard to include the third prong of the Miller-Ginsberg ``harmful to minors'' test. The proposal was to include statutory language clarifying that the indecency standard included only material that ``taken as whole, lack[s] serious literary, artistic, political or scientific value for minors.'' I and others supported this proposal in an effort to avoid criminalizing display of valuable material that might nevertheless be considered ``patently offensive'' according to the standards of some local communities. However, the proposal was rejected by leading supporters of the Goodlatte amendment. They instead reduced the Goodlatte amendment to writing by incorporating the FCC broadcast definition of indecency into the House offer to the Senate. That indecency formulation was accepted by the Senate conferees, and will now become part of this legislation. No hearings were held by any committee of jurisdiction with regard to the constitutionality of the indecency standard adopted by the Conference Committee or the least restrictive means by which to implement such a standard. I regret that there were no hearings on this issue because I believe that we have overlooked serious constitutional problems with applying the indecency standard to the online medium. The least restrictive means test to which the courts subject indecency restrictions requires us to consider carefully how the restriction applies to the medium in question and whether less intrusive alternatives would achieve the governmental interest in protecting children. Having failed to engage in this inquiry and analysis, we have a conference report which assumes that the broadcast indecency standard can simply be applied wholesale to displays of online content. While I believe that we have made progress in some respects through the adoption of the conference compromise on Internet content, I fear that our failure carefully to consider the least restrictive alternative test may result in the invalidation of section 223(d), a concern expressed to me in a letter from the Department of Justice. This letter was sent to all the conferees and explained that the indecency prohibition adopted by the conference was constitutionally suspect, and stood a greater risk of being found unconstitutional than the harmful to minors standard that was supported by 16 House conferees. In a hurried effort to appear tough on pornography we may well have approved an unenforceable legal standard.

Mr. BERMAN

Mr. BERMAN. Mr. Speaker, I am honored to pay tribute to Toba and Earl Greinetz, who this year are being recognized by the Valley Jewish Business Leaders Association for their extensive efforts on behalf of the Jewish community of southern California. The honor is well deserved: Toba and Earl give so much of their time to a variety of organizations, and in so many ways. By their selflessness and boundless energy, they are in example to us all. Toba and Earl, who first met at the ages of 11 and 13 respectively, literally grew up in and around the Jewish community of Denver. Displaying a strong sense of involvement at an early age, they were active with the Denver Jewish Youth Council and were officers in AZA and BBG. After graduating from the university of Denver, and getting married, the couple resumed their involvement with the local Jewish community. Earl became vice president of the Jewish Family and Children's Service, and chaired the Denver accountants/lawyers division. He was also an officer and member of executive committee of their synagogue. At the same time, Toba served on the board of the woman's division of the National Jewish Hospital, and as a member of the Jewish Family and Children's Service Adoption Committee. In 1968, the couple moved to the San Fernando Valley, where they quickly resumed their involvement with the Jewish community. Some of the highlights over the past 27 years include Toba becoming founder of the Valley Jewish Business Leaders Association; Earl serving as president of the Valley Alliance of the Greater Los Angeles Jewish Federation and both of them becoming active with the University of Judaism. The parents of three children, and the grandparents of six, Toba and Earl have succeeded at balancing family, career, and community. I ask my colleagues to join me in saluting Toba and Earl Greinetz, who are a shining example for us all.

Mr. BERMAN

Mr. BERMAN. Mr. Speaker, I am honored to pay tribute to Pat Zicarelli, who is the outgoing president of the San Fernando Valley Association of Realtors. Under Pat's aggressive leadership, the association expanded membership services, became deeply involved in community affairs, and raised significant funds for the Make-a-Wish Foundation. With his energy and enthusiasm, Pat was an excellent leader for the association. His successor will find him a tough act to follow. Pat has a 20-year history of participation in civic, community, and business affairs, in the San Fernando Valley. Indeed, his resume is crowded with credits. To cite a few of many examples: Pat is serving a second term as president of the Tarzana Chamber of Commerce, has been an executive business fundraiser for the Muscular Dystrophy Association, has worked with local crime watch programs, and for 2 years was on the board of directors of the Miss California USA Pageant. Not surprisingly, Pat has been the recipient of numerous awards through the years. In 1982, he was named Realtor-Associate of the Year by the San Fernando Valley Association of Realtors; in 1992 Assemblyman Richard Katz selected Pat to receive the San Fernando Valley Small Business Owner of the Year Award. Pat was also given the Outstanding Person of the Year Award by the Tarzana Chamber of Commerce. As president of the Valley Association of Realtors, Pat championed the adaptation of new technologies. Always on top of the latest innovations, Pat improved and expanded CRIS-NET, which is widely recognized as one of the industry's most advanced real estate information systems. He has positioned the association to be a key player in the information age. I ask my colleagues to join me in saluting Pat Zicarelli, who has just concluded a successful tenure as president of the San Fernando Valley Association of Realtors. His commitment to business and dedication to his community are an example for us all.

Mr. BERMAN

Mr. BERMAN. Mr. Speaker, I hear a lot of talk, general talk, about climate for investors and climate for new ventures, and trial lawyers, and bipartisan efforts. No one seems to want to address the specific points of the veto, I suggest, because there is no good answers to those specific points. Mr. Speaker, if I heard it once, I heard it ten times from the gentleman from California when this bill passed: We want a pleading standard that matches the Second Circuit, not the lose pleading requirement of the Ninth Circuit. Why do they come back? The Second Circuit standard is not enough. We want to make it even tougher to file a suit based on fraud and defrauding investors. The question of sanctions; I think there should be tough sanctions on frivolous lawsuits. I think there should be tough sanctions on frivolous defenses. Here we presume a frivolous plaintiff pays all the legal costs and we specifically prohibit a presumption of all the costs of the plaintiff by frivolous defenses by the defendant. Finally, on the safe-harbor provisions, they allow an individual to lie to potential investors, make some cautionary statements, and state specifically they cannot make any general allegation with respect to the state of mind of the person who is lying, and then allows omission of major, major kinds of cautionary statement. Mr. Speaker, a new drug company could represent future earnings, make forward-looking statements, talk about the problem of floods and talk about the problem of earthquakes and the problem of labor disputes, and never mention that the company that their drug is based on has not yet had FDA approval. All we are asking is to clean this bill up so that my colleagues can achieve the purposes they say they want, without undermining the ability of fraudulent actors to pay the penalties they should be paying to the investors they have defrauded.

Mr. BERMAN

Mr. BERMAN. Mr. Speaker, will the gentleman yield?

Mr. BERMAN. Mr. Speaker, I want to protect forward-looking statements and I want to protect that ability to attract investors. I am not asking that they be necessarily accurate all the time, or right, or correct. I am saying that when they know what they are saying in the future that their nonexistent revenue will grow by 30 percent each year, that that should not be immunized.