Joe Biden

Mr. BIDEN

Mr. BIDEN. Mr. President, I think a little bit of immediate past history is important for us to recall here. With regard to whether or not this policy that has been pursued in this administration relative to Bosnia and Herzegovina was a sound policy or not, it is the same policy that was pursued by the Bush administration. The Bush administration set a policy in motion that said we would support an arms embargo against the Bosnian Government, as well as others, and that we would not use air power to relieve the genocidal actions of the Serbs. To my great disappointment, although there were faint efforts to change that policy by attempting to convince our allies to lift the embargo, the truth of the matter was this administration did not change the position. Some of us, as long ago as the last 4 months of the Bush administration, argued loudly, if not persuasively, that the Bush policy was an incorrect policy. We argued that we should lift the arms embargo. In addition to that, we argued that we should supply weapons to the Bosnian Government which at that time was a multiethnic government made up of a council of Presidents, roughly divided in thirds among Moslems, Croats, and Serbs within Bosnia, and a Bosnian Army made up of Bosnian Serbs, Bosnian Croats, and Bosnian Moslems. We even passed the so-called Biden amendment through both Houses of the United States Congress that authorized the President of the United States to seek a lifting of the embargo and to transfer up to $50 million worth of weaponry, off the shelf, to the Bosnian Government. That was in the last months of the Bush administration. I--and I do not say this to speak to what I did or did not do, but to mark it historically--I, after Senator Moynihan, was one of the few people who went to Sarajevo, went to near Srebrenica, went to Tuzla, went to Belgrade, went to Zagreb, met with Karadzic, met with Milosevic, met with UNPROFOR, met with the Croatian leadership, came back and wrote a report, and was debriefed by the Secretary of State and the President. The report called for lifting the arms embargo and using air power to strike at the Serbian genocidal undertakings. Back then, I--and I was not the only one in the world community--I came back and pointed out that this was raw, unadulterated genocide. The Serbs had set up rape camps, a policy explicitly designed to take Moslem women, primarily, into camps, rape them, have them carry the children to term, in order to intimidate and pollute the Moslem people in Bosnia. Everyone said that was not going on; this was not 1937 or 1938 or 1940. But now, no one questions it occurred. I remember coming back--after going up through Mount Igman and over the mountains into a place called Kiseljak and going through villages-- and saying, ``There are graves.'' You could ride through a village in the mountains and see three or four homes in a row, pristinely kept, window boxes with flowers. The next home, a hole in the ground. The next home, perfectly kept. After that, two holes in the ground or a chimney sticking up. And graves at the end of the town road. I was told by our own people as well as the French, God bless them, and the Brits, that these folks are all the same. They are all bad guys. They are all like this. They have all been doing this for all of the last 4 centuries--which is historically inaccurate and was inaccurate in terms of what was taking place at the time. I remember when we watched on television--the Senator from Arizona and I spoke to it on the floor that night--when they overran Srebrenica. You could actually see U.N. soldiers sitting there with their blue helmets and hats on top of tanks, watching the Serb conquerors take the women and children and send them in one direction and take the able-bodied men and send them in the other direction--for extermination. This was not because they wanted segregated prison cells. They took them to the woods, they dug holes, they shot them, they dropped them in the holes, they poured lye on their bodies and bulldozed the dirt over them. We were told no, that is not happening. Now we have satellite imaging that uncovers this--surprise. Surprise. ``Oh, my Lord this is happening.'' The reason I bother to say this, because I know you all are tired of hearing me saying it for the last 3 years, is to make one very important point. One, with all due respect, I do not think the President has accurately made. And that is, what is our interest in Bosnia? Is there a vital interest? Or, as my friend from Missouri said, ``Does this action represent our interest and our values?'' If this does not represent our interests and our values, then nothing that has happened since the end of World War II represents our values. How many in this Chamber, like me, have gone to Holocaust memorial events and heard the refrain, ``Never again.'' Never again? On the same continent, in the same proximity, the same death camps--it is happening again. And it happened again. This time it was not Jews. It was primarily Moslems. In 1935 and 1937 and 1939 and 1941 and 1943, had it been Catholics like me, or Protestants, like many in here, who were being taken to death camps, the world would have risen up years earlier. But it was not. It was Jews. And we all turned a blind eye, as a world. I respectfully suggest, were it not Moslems this time who were in the rape camps, were it not Moslems who were being exterminated as part of this new phrase ``ethnic cleansing'', that the world would have behaved differently. I wonder how many of us ever thought, as students of World War II or as participants in World War II, that we would ever serve in the Senate and hear the phrase, openly used by one party in a conflict, ``ethnic cleansing.'' Ethnic cleansing. Is that not an antiseptic term? And notwithstanding the fact only the Serbs used the phrase, I kept hearing on this floor that, ``They are all the same. They are all the same.'' There have been atrocities committed by Moslems and by Croats. But they have not set up rape camps. They have not set up death camps. They have not mass murdered as part of a coherent plan for people, based upon their ethnicity and their religion. That is called genocide-- genocide. That is what it is. And now, even in our move to state what our vital interest is, this administration and others who support it are afraid to use the word. We are told we are not taking sides. I am here to take sides. Milosevic, the leader of the Bosnian Serbs, is a war criminal. He is no better than Himmler. He is no better than Goebbels. He is a war criminal. Karadzic is a war criminal. I might add that the leader of Serbia, Milosevic, is also a war criminal, although he is the only one not indicted so far. So I hear people stand here and say, ``What is our interest? What is our interest?'' Our interest is that history repeated itself. Let me be presumptuous enough to go on a little more to what I think the next history lesson will be. The Soviet empire has collapsed--the good news. The bad news is that all of the ethnic hatreds, all of the ethnic fighting, all of the atrocities that occurred 100 years ago and 40 years ago are now uncovered again. There are 25 million Russians living outside the border of Russia, in the Ukraine, in the Baltic countries, in Kazakhstan. There is war in Armenia, in Georgia, and almost all of it is based on ethnicity. What is the message we send to the world if we stand by and we say we will let it continue to happen here in this place but it is not in our interest? We do not fear that it will spread? I am not here to tell you that, if we do not act, it will spread and cause a war in Europe-- tomorrow or next year. But I am here to tell you that within the decade, it will cause the spread of war like a cancer, and the collapse of the Western alliance. What is so important about the Western alliance? NATO for NATO's sake so that we can beat our breast? What I am about to say is going to cause me great difficulty if I am reelected and come back here as the ranking member or chairman of the Foreign Relations Committee. But Europe cannot stay united without the United States. There is no moral center in Europe. When in the last two centuries have the French, or the British, or the Germans, or the Belgiums, or the Italians moved in a way to unify that continent to stand up to this kind of genocide? When have they done it? The only reason anything is happening now is because the United States of America finally--finally--is understanding her role. So we do have a national interest. Our national interest goes well beyond the genocide that will spread like a cancer. I will not take the time, because others wish to speak, to explain what the rest of it is. But I do in my longer statement which I will put in the Record. But there is a second question it seems to me after first asking what is the national interest of the United States. Once you establish that there is a national interest--and I believe there is one--then, is the proposed action by the President the one that can meet that national interest? I respectfully suggest this is not the best one. If the President and the administration and the last administration, in my view, had the gumption, they would have told our European allies that we are lifting the arms embargo. This is not a Vietnamization program. The Vietnamese and South Vietnam were not sure where they wanted to be, North or South. That is why it never worked. The Bosnians know where they want to be. They want to be free. They will fight for themselves, and all they have ever asked for is lifting the arms embargo. Prime Minister Silajdzic came after my first visit to Bosnia. I had him in my office and 12 of my colleagues--very good men and women came, Democrats and Republicans. The word was then, if we lift the embargo, it is just going to make it worse for those poor folks and more are going to get killed. One of my Republican colleagues, who is very informed on policy, and a Democratic colleague at my conference table asked the same thing of Silajdzic. Silajdzic said something I will never forget as long as I live. He looked at this Senator, and he said: ``Senator, at least do me the honor and the privilege of letting me choose how to die.'' ``Senator, do not send me food to fatten me and my family in the winter only to be assured that I will be killed with the full stomach. Give me a weapon. Let me defend myself, and have the good grace to let me choose how to die.'' He then went on to add, ``I am not asking for you to send a single American troop. I am not asking for you to send a single American. I am asking you to lift this immoral embargo.'' That is what should have been done, as a student of history of the Balkans--I suspect that I have read as much as almost anybody here, at least I have tried my best, and I have gone there twice and I have spoken with everyone I could. During the last two Balkan wars, the only time they ended was when all parties concluded that they could not achieve any more on the ground than they could at the peace table. But events have overtaken us. And the event that has overtaken us is called Dayton. I say to my friends here in the Senate, the part that I do not like about being Senator is when Presidents do not get it right, and we do not get to make the best choice. We get to choose among bad choices. It is that old thing about the Hobson's choice. Two bad choices is no choice at all. The best choice is to lift the embargo, provide air cover, wait while it is being done, and let the Bosnian Government establish itself because Serbia has already lost. Milosevic has no interest in continuing because he is a pariah in the Western community. Have the War Crimes Tribunal go forward and let it be settled. But we did not do that. We have one of two choices now: One, we participate with a better than even chance. We provide enough time for the Bosnian Government to get the physical wherewithal and economic strength to defend themselves, and then we leave. Two, we do not participate at all, which means nothing happens because the Europeans have no center on this issue. Nothing will happen except the embargo will be on, the genocide will continue, our interest will be badly damaged, and the cancer will spread. My son may not go to Bosnia today, but he may be in eastern Germany in 8 years. My grandchildren may not be in Bosnia today but they will be in Europe fighting a war 15 years from now. So given the choices, I support this resolution. I support it because we do have a vital national interest, and we do have a moral rationale for our engagement. If we thought we had a moral interest, a national interest in restoring the Emir of Kuwait to the throne--restoring the Emir of Kuwait to the throne, God bless his soul--to send 500,000 troops there, tell me, tell me why we do not have a moral interest in stopping what was international aggression by Serbia crossing the Drina River into a U.N.-recognized country and participating in genocide? In Kuwait we had a single example of one young woman who was raped and beaten, which turned out not to be true, to enrage people about the awful thing Saddam Hussein was doing. And here we have mass graves. I have visited with Bob Dole a hospital in Sarajevo. Do you know who was in the hospital? Seven children. Do you know why there were only seven children? Because the Serbs sit in those hills and they have as a campaign of terror, the maiming of children. Walk with me through Sarajevo's streets and see draped across the roads blankets and sheets. I thought it was a Lower East Side in 1919 of New York. I asked why. Do you know why they are there? To take over the line of fire from Serbian snipers shooting children. We pretended it did not happen. Ask Bob Dole. We stood beside a beautiful raven-haired child who looked at us as we spoke. And the neurosurgeon said, ``The reason she is not turning is she has no sight. He turned her head. The bullet had gone through the back of her head, severed the optic nerves, and came out the other side. There were seven children in that hospital. Nobody else. It was a planned campaign by Mladic and the Serbs to terrorize the Moslem community. So let me tell you. If your moral center is oil, I understand you. If your moral center is humanity, there is no comparing the restoration of the Emir of Kuwait with the ending of genocide in Bosnia. But there is only one exit strategy, I say, Mr. President, there is only one. I hope the President, with all due respect, means it. That we will not be able to leave unless--what Bob Dole, Joe Biden, Joe Lieberman, and a whole bunch of others insist be in this resolution--the Bosnian Government is armed and prepared to defend itself. That is the ticket home for Americans. There is a moral reason for this. There is a U.S. interest. It is not the best way to do it, but, as Senators, we only get to choose among the bad ways offered to us. It is worth doing. In this Christmas season, as I saw off the first group to go to Bosnia from Dover Air Force Base, the only thing I could think to say is ``thank you; watch where you walk--there are a million landmines-- and God bless you. I am telling you, you are doing something right but you are being put in a position that is not the one you should have been put in in order to accomplish it.'' It is a hell of a way to send them off, but we have no choice, it seems to me, to meet our moral obligation and our national vital interest. Mr. President, after nearly 4 years of indifference, half-measures, national policies of European governments pursued in the garb of international peacekeeping, and other sophistries devoid of moral content, the western world has finally been moved to put an end to the murderous fighting that has left Bosnia and Herzegovina in ruins. While the dilly-dallying has gone on, more than a quarter-million Bosnians of various ethnic and religious affiliation have been killed, and an additional 2\1/2\ million persons--over half the total population--have been driven from their homes. But, Mr. President, numbers alone cannot begin to convey the savagery, the barbarity, the depravity that has reigned in this small balkan country. There have been wars since time immemorial, many on a larger scale than the war in Bosnia. There have been refugee flights in other countries that dwarf the Bosnian numbers. This century has seen the Jewish Holocaust, the Armenian Genocide, the murderous collectivation of Ukraine, and the killing fields of Cambodia. So, Mr. President, I suppose cynics might say that we have become hardened to the unspeakable. Yet what has happened in Bosnia and Herzegovina not only has had components of the other horrors the 20th-century, it has actually added a diabolical new feature: The unprecedented, centrally planned campaign of mass rape that the Bosnian Serbs have used as a calculated weapon of terror designed to demoralize Bosnian Moslem communities. Mr. President, why was this allowed to happen? To help answer this question, let me offer a piece of counter-factual analysis that I have delivered before on this Senate floor: ``What if'' a Moslem-dominated Bosnia-Herzegovina had attacked a peaceful orthodox Christian Serbia, carried out barbaric atrocities against Serbian civilians, and then proudly announced that its policy of ethnic cleansing had been successful--would Christian Europe then have sat idly by, conjuring up excuse after excuse for not halting the cruel and cowardly aggression? Mr. President, I think the answer is self-evident. European Jewry was yesterday's victim. The Bosnian Moslems are today's. If we let the barbarism in Bosnia stand, who knows who will be tomorrow's? Now at last, thanks to the belated--nonetheless, praiseworthy-- leadership of the United States, we stand on the verge of a massive international effort designed to put a stop to the depravity, to try to restore a modicum of normal, civilized life to that sorry land. I fear that the chances for success are a long-shot. But Mr. President, make no mistake about it: if the United States does not continue to lead this effort, the chances for even a semblance of peace in Bosnia are zero. And yet the choice is not an easy one. Like almost every other decision concerning foreign policy that a U.S. Senator has to make, our choice about whether to support President Clinton's decision to deploy 20,000 American troops to Bosnia as part of the international peace implementation force known as I-FoR is a reactive one. The U.S. Congress rarely gets to formulate policy. We cannot, and should not, write arms control treaties or other international agreements. Most of the time we are asked to react to proposed solutions that are far from ideal, perhaps not even the best. But often these solutions, however risky they may be, are nonetheless better than not acting at all. That is exactly how I feel about the proposed deployment of U.S. troops in the I-FoR. For more than 3 years, since September 1992, I have been calling for lifting the illegal and unjust arms embargo against the Government of Bosnia and Herzegovina, the victim of Serbian aggression, no matter what our European allies think about such a decision. Concurrently, I have called for striking from the air at the offending Serbs while the Bosnian Government was building up its own military strength. Finally, I have advocated making clear to the Government of Serbia that it would suffer massive air strikes upon its territory across the Drina River if it increased its assistance to the Bosnian Serb aggressors. Moreover, the Biden Amendment, which I introduced in 1992, and which was successively approved by Congress in 1993 and 1994, authorized assistance to Bosnia through a drawdown of up to $50 million of Defense Department weapons stocks and other military equipment. This year's foreign operations conference report has increased this figure to $100 million. As soon as the President receives and signs the foreign operations appropriations bill, he will be able to use this source any time upon termination of the arms embargo. Up until 1 month ago this policy that I proposed remained, I am convinced, the best option open to the United States. It would have created the conditions of military parity in Bosnia and Herzegovina that are essential for maintaining a lasting peace. Then came the talks at Wright-Patterson Air Force Base. The peace agreement that emerged from those talks is not perfect--no international agreement ever is--but we have to deal with the situation now at hand. Let me take this occasion to congratulate Secretary of State Christopher and his negotiating team for their tireless efforts that achieved what no one else had been able to accomplish for 3\1/2\ years: a multilateral agreement that offers the only real promise of ending the worst bloodshed in Europe since World War II. It is a highly significant achievement, which brings great credit to the United States of America. Yet Secretary Christopher, Secretary of Defense Perry, and General Shalikashvili would be the first to add that the Dayton Accords are still only a building block for the structure of peace for the former Yugoslavia, which remains to be put into place. Let me underscore that the involvement of American ground troops in the peace enforcement effort--the solution less preferable than the lift-and-strike policy I have consistently advocated--in no way lessens the necessity of equipping and training the Bosnian Federation's army in order to allow it to defend itself when all foreign peace implementation forces leave. The bipartisan resolution specifically mentions this point. So I would like also to be perfectly clear that if the administration had not assured that this equipping and training would take place--if not by uniformed U.S. military personnel, then by contractors--I would not support the participation of U.S. ground troops in the I-FoR. Third countries may, of course, also contribute weapons and training to the Federation, but a failure of Americans to take the lead in this effort would quite simply be a prescription for a prolonged involvement of our ground forces in Bosnia, a policy which the American people will not countenance. President Clinton's outstanding televised speech to the Nation went a long way toward explaining to the American people the rationale for, and mission of our troops in the I-FoR. I do not take issue with any of the President's arguments. Above all, I would emphasize to those who wish to restrict America's involvement abroad that the choice facing us is not between a risky foreign mission and the status quo. If the United States does not participate in--or more precisely, lead--the I-For, I am convinced that the war will re-ignite, escalate, probably spread, and open the door for a radical destabilization of southern Europe. And that most assuredly is in our vital national interest to prevent. Finally there is the issue of American leadership in NATO and in the larger community of civilized nations. I have long criticized some of our European allies, first for their utilization of the purposefully hamstrung U.N. peacekeeping operation in order not to take the militarily resolute measures that could have stopped the Serbs in their tracks in 1991, and second for their obstinate unwillingness to allow NATO--principally American--air power to cripple the Bosnian Serb war machine. It took the massacre in the Sarajevo market at the end of August and the withdrawal of the hobbled European peacekeepers, for us finally to overrule our timorous European friends. Yet, Mr. President, the President of the United States has given his pledge of American troops; the United States was the driving force in crafting the Dayton accords; and our credibility as the leader of NATO is on the line. Bosnia has revealed strains within NATO that must be addressed, but this is not the time to exacerbate the tensions. Moreover, France has just re-entered the alliance's integrated military command, a sign that a successful operation in Bosnia may bode well for a stronger NATO in the future. Some of the opponents of our involvement have trotted out the cliche that the United States cannot be the ``world's policeman.'' Well, of course we can't solve every crisis everywhere. But as President Clinton said in his television speech, that obvious fact does not mean that we cannot help anywhere. The slaughter, rape, and destruction in Bosnia and Herzegovina should be an affront to the sensibilities of every American. The I-For mission at the very least will give the brutalized people of that land a last chance to stop the killing and to re-enter the world community. For all these reasons, then, our participation in the operation is vital. There are, however, serious risks associated with sending our troops to Bosnia, and it is incumbent upon the administration to explain how we are planning to minimize them. These risks include: Millions of lethal mines, which will probably be hidden by snow for several months; The brutal Balkan winter that makes driving hazardous; Irregular forces, foreign extremists, and other rogue elements that may specially target American troops; and The likelihood that an armed, hostile Bosnian Serb populace in several locations could both harbor attackers and engage in disruptive activity itself. From administration testimony in hearings before the Foreign Relations Committee, I am satisfied that these concerns have been thoroughly analyzed, and counter measures developed to the fullest extent possible. Last Friday at 5 o'clock in the morning, I went to Dover Air Force Base in my State of Delaware to personally say good-bye to a detachment of our troops as they embarked for Bosnia. They are as fine a group of American men and women as has ever represented the Armed Forces of this country. Every possible precaution must be taken to lessen the threat to their person as they carry out their duties in Bosnia. In this regard, I emphasize that the robust rules of engagement for our troops must not be altered under any circumstances. In larger terms, I believe that the criteria for the mission's success and a responsible exit strategy must be delineated even more clearly than has already been done. For example, is the absence of serious conflict after 1 year sufficient progress to warrant a declaration of mission accomplished? Stated more precisely, will we withdraw our ground troops after precisely 1 year even if the envisioned democratic institutions of the Bosnian central government are not yet functioning? If so, will other international units remain for a longer period? My own belief is that the I-For mission should be limited to creating the basic conditions for democratic institution-building to take place. There must be no mission creep for our military forces. Yet if the civilian aspects of the agreement do not proceed, then the American troops and their international colleagues will have served in vain. Hence, a premium must be put on coordinating the mission of the American military force with the work of the international civilian agencies preparing to implement the electoral, refugee, and humanitarian aspects of the Dayton accords. But it may well be unrealistic to expect construction of a working democracy in 365 days or less. Therefore, plans must be drawn up immediately for a ``follow-on'' force to remain in Bosnia after the United States troops leave. My strong feeling is that this force should be led by our European NATO allies, augmented by units of European neutrals with experience in peacekeeping operations. Finally, let me repeat once again the absolute necessity of creating a balance of military strength on the ground so that when the international peacekeepers are withdrawn, the federation of Bosnia and Herzegovina will not be vulnerable to renewed attack. The peace settlement is far from perfect. There is no guarantee that it will be implemented. The involvement of American ground forces means--although I pray I am wrong--that casualties and fatalities are likely to occur. But, as I have indicated, we live in a highly imperfect world. To do nothing would be to invite larger problems in the future that would require a much riskier and bloodier American involvement. If the conditions I have outlined are met: retention of very robust rules of engagement for our troops; no mission creep for our troops; but close coordination of the I-For with international civilian efforts in Bosnia; a United States lead in coordinating arming and training the army of the federation of Bosnia and Herzegovina; and a finely drawn set of criteria for mission success. Then I believe that President Clinton's policy deserves the support of the Congress. The President has promised to meet these conditions. Therefore, I will vote for the bipartisan resolution, and I urge my colleagues to do the same.

Mr. BIDEN

Mr. BIDEN. I ask that you withhold that request.

Mr. BIDEN. I understand we have 1 minute. Mr. President, I believe that the amendment of my friend from Utah is fatally flawed. For the first time ever, it puts the Federal Government in the position of the State governments of choosing what types of speech they think are appropriate. My amendment protects the flag, plain and simple. It is straightforward. It does not allow the Government to choose. It defines it. It says the flag cannot be burned, trampled upon. It is very specific. I ask that my colleagues look at it closely and, hopefully, support it. I ask for the yeas and nays on my amendment.

Mr. BIDEN

Mr. BIDEN. Mr. President, I send the amendment to the desk and ask for its immediate consideration.

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

Mr. BIDEN. Mr. President, I shall not seek to have a vote on the amendment at this time, under the order. My amendment is simple and straightforward. It leaves no room for guesswork about what it will mean. It gives the Congress the power to enact--it is a constitutional amendment--it gives Congress the power to enact a specific viewpoint-neutral statute, a statute making it unlawful to burn, mutilate or trample upon any flag of the United States, period. It does not matter who burns, mutilates, or tramples the flag, and it does not matter why. Under my proposal, it would be unlawful to do the flag harm, no ifs, ands, or buts. It makes a single exception for disposing of the flag when it has become worn or soiled, and it says a flag is what we all know a flag to be, that which is commonly displayed and is defined by the Congress. It rules out things like pictures of flags, napkins with flags on them, and other representations of the flag. My proposal also gives the Congress the power to write appropriate penalties for violating the statute. Let me say at the outset that I am the first to acknowledge that the restriction on flag burning is a restriction on expressive conduct. There are no two ways about it. When Gregory Johnson burned the flag at the Republican convention in 1984 and chanted the words ``America, red, white, and blue, I spit on you,'' he was trying to say something. It may have been no more than an ``inarticulate grunt or roar,'' as Chief Justice Rehnquist puts it, but it was communicative nonetheless. So let us be honest, any attempt to limit flag burning does limit symbolic conduct, but that was just as true back in 1989 when 91 Senators voted for my Flag Protection Act, which made it a Federal crime to burn, mutilate, or trample on the flag. Let us be honest about another thing. This first amendment does not give symbolic conduct, or any other kind of speech, for that matter, limitless protection. You cannot burn a draft card to protest the war, and you cannot sleep in Lafayette Park to protest the homelessness of America; you cannot spray paint your views on the Washington Monument; you cannot blast them from a sound truck in a residential neighborhood at 3 a.m. in the morning. When we prohibit flag burning, we are not interfering with a person's freedom to express his or her ideas in any number of other ways. As four Justices noted in the Eichmann case--that is the one that declared my statute unconstitutional--it may well be true that other means of expression may be less effective in drawing attention to those ideas, but that is not itself a sufficient reason for immunizing flag burning. Presumably, a gigantic fireworks display or a parade of nude models in a public park might draw even more attention to a controversial message, but such methods of expression are nonetheless subject to regulation. We limit the manner in which folks can express themselves all the time, as long as we limit everyone the same way. We cannot say that I can have a fireworks display and you cannot. We cannot say that one nude person could go through a park and another one cannot. We must treat all people the same--as long as we do it the same way. But we do limit the ways in which we can express ourselves. And that, Mr. President, is precisely the point. We cannot let someone make a speech on top of the Capitol in favor of American involvement in Bosnia but tell the person with a contrary view that he cannot go up there and make the same speech. But we can tell them both, and everyone else, that no speeches can be made from the top of the Capitol dome. We just cannot choose among the speakers. We can, thus, restrict the time, place, and manner by which people express themselves. The thing we cannot do is regulate the content of their expression and discriminate between the various viewpoints being expressed. I think that we can and that we should tell everyone they cannot burn the flag. I agree with Justices Warren, Fortas, and Black that the right to burn the flag does not sit at the heart of the first amendment. But I also agree with Justice Scalia when he said, ``The Government may not regulate speech based on hostility or favoritism toward the underlying message expressed.'' The point of the first amendment is that the majority preferences must be expressed in some fashion other than silencing speech on the basis of content. Yes, I agree with Justices Scalia, Rehnquist, Thomas, Kennedy, and O'Connor in their strong and unequivocal condemnation of viewpoint discrimination just last term in the Rosenberg case. I remind my colleagues, nobody has ever accused Justice Rehnquist of being a radical or a liberal, or Justice Scalia of being a radical or a liberal, or Justice Thomas of being a liberal, and the list goes on. Flag burning may not sit at the heart of the first amendment, but the principle against viewpoint discrimination does sit at the heart of the first amendment. This is one of those defining constitutional principles that sets America apart and, in so many ways, above other nations. Here, the Government cannot regulate speech based on the viewpoint of the speaker. Here, the Government cannot pick and choose between speech it likes and speech it does not like, and criminalize what it rejects but not what it respects. That is the bedrock first amendment principle upon which my proposed amendment is based, and it is the principle--the core principle, in my view--that separates my proposal, my constitutional amendment, from the one proposed by Senators Hatch and Heflin. Their amendment allows and, in fact, encourages viewpoint discrimination. Mine, flatly stated, prohibits it. Their amendment would send to jail a guy who burns the flag to protest the war, but not the guy who burns the flag to praise the war. My amendment would throw them both in jail, if that is what the Congress decides to legislate. Their amendment would make it a crime to walk on the flag at a college campus sit-in, but not at the war memorial. My amendment would criminalize both, if that is what the Congress legislated. In my view, it does not matter why you burn or mutilate or trample on the flag; you should not do it, period. I do not care whether you mean to protest the war or praise the war or start a war. You should not do it. Our interest in the flag is in the flag itself as a unifying symbol. I might add, the person riding down Constitution Avenue watching the veteran burn the flag to memorialize his colleagues has no notion why he is doing it. All he knows is that the national symbol is being burned. Under their amendment, you would have to get close enough to hear what was being said in order to determine whether or not it should be allowed or not allowed. I find it no less demeaning that someone would, in order to pay respect to my deceased family, trample across our grave plots than I would if someone tramples across them to show disrespect. I do not want anybody trampling where my family is buried. I do not want anybody burning the flag, whether they are doing it to praise me or condemn me. They should not do it. Our interest is in the flag--in the flag itself--not in advancing or silencing any particular idea that the flag destroyer might have in mind. But do not take my view for it, ask a Boy Scout. If a Scout sees a flag dip to the ground, he runs to pick it up, does he not? That is how I trained my boys and my daughter. That is how I was trained as a Scout from the time I was a little kid. It does not matter why it fell; do not let it touch the ground. He does not care why the flag is on the ground, he does not care who let it fall, he does not care what somebody might have been trying to say when they let the flag fall; all he knows is that the flag is something special and it should not be on the ground. And so it should be with all of us. If the only justification for protecting this flag, Mr. President, and if it, in fact, is the unifying symbol of a diverse nation and it serves a greater Government purpose of holding us together or reminding us how we are the same and not different, if that is not the purpose, then this exercise is profane, the exercise we are undertaking is profane. For what else is the reason? Interested in a cloth maker, we do not want them burned? Or we have a greater interest in cloth makers, so they can buy and sell more flags? What is the purpose? It either unifies or does not; it either should be soiled or not soiled. We cannot have any other rationale that I can come up with. The flag is a cherished symbol, not as a vehicle for speech; it is a cherished symbol, period. That is why it should be protected. That is what my amendment does. The amendment authorizes Congress, and Congress alone--not the States--for, as I said earlier, I do not want any other State defining to me what my national symbol means. This is a national symbol. This is the National Government, and the National Government should have unifying rules about the national symbol. That is what my amendment does. Only the National Government, speaking for the Nation as a whole, can speak to how we should treat that unifying symbol. This means my amendment would not let some violate the physical integrity of the flag but not others. Under this amendment, no one will be able to do the flag harm. With viewpoint neutrality as its signpost, the amendment preserves the first amendment's cardinal value. The amendment also ensures that the implementing legislation will be viewpoint neutral, and it makes sure that there will not be a patchwork of conflicting local flag protection laws. What will be a crime in Delaware will also be a crime in Utah. There will not be a place in the Nation you can go and legally burn my flag, our flag. We do not have a flag T-shirt contraband in Minnesota but it is all the rage down in Florida. Under this amendment, unlike the Hatch-Heflin provision, we know what we are getting. We are getting legislation that protects the flag while at the same time preserves our speech; at the same time, presenting prosecutions and convictions based upon viewpoint discrimination. To be sure, my amendment impacts first amendment values, but I believe, on balance, that it stands in the proud tradition of many legal scholars from Justices Harlan to Fortas, from Black to Stevens, from Chief Justice Warren to Justice Burger, who believe that flag protection and free expression are not incompatible. I join them in believing that the singular symbol of our Nation ought to be protected. They recognize, as Justice Holmes once said, ``We live by symbols.'' We live by symbols. I share that view. We must protect both the flag and the first amendment. One is a symbol, the other is the heart of the Nation and who we are as a people. We must protect the flag because it is a unique and unifying symbol of our Nation, and we must protect the first amendment because it is our single greatest guarantee of freedom in this country. The amendment that I propose today does nothing more than authorize a single law protecting the flag. It does nothing less than respect the core first amendment values of neutrality and equality. We can protect both the flag and the liberties for which it stands, but, in my humble opinion, the Heflin-Hatch amendment sacrifices one for the other. I will at the appropriate time strongly urge my colleagues to reject their amendment and hopefully vote for mine, instead. In conclusion, Mr. President, I also respect those who believe my amendment should not become part of the Constitution. I respect them very much. What I do not think anyone can disagree with is that there is a fundamental distinction between the amendment in terms of its impact on the first amendment. My objective here, as much as protecting the flag, is in fact to protect and guarantee the first amendment. As I say, there is no one on this floor since I have been here who has been more deeply involved in attempting to protect the flag than I have. I authored the first statute that passed. I authored this amendment 5 years ago, but I do not take kindly to the notion that we are going to consider an amendment that may very well pass, that will, in fact, allow the Federal Government and State Governments for the first time to choose among the types of speech they wish us to be able to engage in: criminalize one, and not the other. If it is a national symbol, protect it, period. I yield the floor.

Mr. BIDEN. That is what I wish to speak to, Mr. President. Mr. President, we have had some discussion this morning, we will have some more discussions this afternoon, and some discussion tomorrow as well, on a constitutional amendment to protect the flag. Nothing symbolizes what we might call our national spirit like the flag. In times of crisis it inspires us to do more. In times of tranquility it moves us to do better. And, at all times it unifies us in the face of our diversity and of our difference. There are those who believe that we should not, under any circumstances, and no matter how it is worded, write an amendment into the Constitution to protect the flag because they believe there is no way to do that without damaging an even more cherished right, our right to say whatever we wish to say when we wish to say it without the Government acting as a censor, without the Government choosing among our words, which are appropriate and which are not. I understand their view and I respect it. I believe, as strongly as I believe anything about this debate, that those against the amendment in question are no less patriotic, no more un-American, no less American, no better, no worse than those who share the view that the amendment in question is an appropriate way to protect the flag, which really means to speak to our national spirit and consensus that exists in America about what we stand for. The so-called culture norms people often speak to. I respect their motives and I respect their views. But they are not mine. Although it is arguably not necessary to enshrine in the Constitution a way of protecting the flag, I believe that written properly, I believe stated properly, it can in fact legitimately be placed in the Constitution without doing damage to any of the other elements of our Constitution. But I should say up front that the amendment in question, in my view, does not do that. I say this as one who has made it his business here on the floor, along with my friend from Vermont, whom I see on the floor, and others, of sometimes being out of step in the minds of many people in terms of protecting the civil liberties of persons in this country to say what they wish to say, to publish what we do not wish them to publish, and to take actions we find reprehensible. But the Senator from Vermont, myself, and others believe they are guaranteed under the first amendment. The first amendment does not say that you can only say things which reflect insight. The first amendment does not say you have to be bright. The first amendment does not say you have to be right. All the first amendment says is that you can say what you wish to say in relation to speech, and the Government cannot censor what you say no matter how, with notable exceptions, how much we do not like what is being said. But I believe that the flag stands alone, and that is a legitimate way to protect our flag as the singular and unifying symbol of a diverse people in need--I would add in urgent need sometimes--of common ground. America is the most extraordinary nation on Earth. I realize those who are here in the galleries who may be from other countries, or those who listen to this on CNN, or C-SPAN--if it is carried--will say, ``Isn't that a typical American assertion, a chauvinistic assertion?'' ``We are the most extraordinary nation on Earth.'' We are extraordinary in the sense not that we are better as individuals, not that we are smarter, not that we are wiser, more generous, or less venal than other people, but the genius of America is the American system, a system that takes into account our significant diversity which in other countries--that diversity I am referring to-- and in other systems creates great strife. We take that diversity, which in other countries creates strife, and we have turned it into strength. That is not very easy to do. People often fear diversity. The fact that we are black and white does not automatically generate fellowship and harmony. The fact that we are Christian, Jew, and Moslem does not send us running into one another's embrace to herald our differences. The fact of the matter is that people fear that which is different. It is a human condition. Our diversity naturally pushes us apart, not together. But what holds us together as a nation, Mr. President, is not a common language, although I think that is necessary; not a common world view, which I do not think is necessary. What holds us together is a common commitment to a system of government, a covenant of goodwill, of tolerance, of equality, and freedom, that is enshrined in the Constitution. And the flag stands as the single most important symbol of that covenant. It is the story of all we have been and the symbol of what we wish to become. To me, the flag is much more than the sum of the stars and the stripes. It sounds corny to say, and to listen to it sometimes, but it is also idealistic. I believe that it is important even more now than then for all Americans to feel like a family. Like all families we have our problems. We squabble with each other. We misunderstood each other. And we hurt each other in countless ways. But at the end of the day we still need to feel like a family under one roof bound together by shaped and shared values, and a shared sense of respect and tolerance. It is the flag that symbolizes those shared values and which reminds us of how the shared covenant of respect and tolerance has to be maintained. It is the flag under which we as a diverse and sometimes divisive community can come together as one. And it is the flag that flies high and proud over our Nation's home. But to say that the flag is worth protecting does not end our conversation. It is only, in my view, where we start, for we must ask how the flag should be protected. As we look to protect the flag, we must not lose sight of the first amendment and its guiding principles for, although the flag may stand alone, it should not and it cannot stand above our most cherished freedom of speech. Here is what I mean. At heart of the first amendment lies a very basic notion; that is, the Government cannot muzzle a speaker because it dislikes what he or she says, or discriminate between your speech and mine because it agrees with me but disagrees with you. That sort of viewpoint discrimination is most importantly what the first amendment forbids. As the Supreme Court has said, and I quote: Above all else, the first amendment means that government has no tolerance to restrict expression because of its message, its ideas, its subject matter, or its content. The essence of forbidden censorship is content control. Just last term, the Supreme Court forcefully reiterated its intolerance for viewpoint discrimination in the majority opinion of Rosenberger versus the University of Virginia. Justices Rehnquist, Scalia, Thomas, Kennedy, and O'Connor--Rehnquist, Scalia, and Thomas not accused of being a liberal triumvirate--said: In the realm of private speech or expression, government regulation may not favor one speaker over another. When the government targets particular views taken by speakers on a subject, the violation of the first amendment is all the more blatant. The Government can tell us we may not blast our opinions over a loudspeaker at 3 a.m. in the morning. It can tell us that we cannot distribute obscenity and that we cannot spread libelous statements about one another. But it cannot apply different rules based upon the viewpoint of the broadcast, the obscenity, or the libel. It cannot say you cannot engage in that obscenity because of the viewpoint of the expression, you cannot broadcast something because of the viewpoint you are expressing, or you cannot say that about another person because of the viewpoint that you are expressing. It cannot apply different rules to Democrats and Republican, hippies and yuppies, rich and poor, black and white, or any other division in this country. It was on this point to protect the flag, while not doing violence to the core first amendment principle of viewpoint neutrality, that I wrote the Flag Protection Act of 1988. That act aimed to safeguard the physical integrity of the flag across the board by making it a Federal crime to mutilate, deface, physically defile, burn, maintain on the floor, or ground, or trample upon the American flag. It passed the Senate, was signed by the President, and it became law. The statute focused solely on the exclusivity of the conduct of the actor, regardless of any idea the actor might have been trying to convey, regardless of whether he meant to cast contempt on the flag, regardless of whether anyone was offended by his actions. The statute was written that way because, in my view and in the view of other of constitutional scholars, the Government's interest in preserving the flag is the same regardless of the particular idea that may have motivated any particular person to burn or mutilate the flag. Our interest in the flag is in the flag itself as the symbol of what we know in our hearts to be precious and rare and which flies high and proud over this place we call home, a precious and rare symbol of this Nation. The flag's unique place in our national life means that we should preserve it against all manner of destruction. It does not matter whether the flag burner means to protest a war, or praise a war, or start a barbecue. It is the flag that is the treasured symbol--not the obnoxious speech nor the positive speech that accompanies the burning of the flag--that must be protected. We are here today deciding whether to add the 28th amendment to the Constitution, with a thought, I believe, that the flag is worthy of constitutional protection. Although I believe it is worthy of constitutional protection, I nevertheless must oppose the constitutional amendment that is before us now. I oppose it because, in my view, it puts the flag on a collision course with the Bill of Rights. Again, the purpose of these amendments is to protect the flag as if we are going to protect a tombstone, as if we are going to protect the national eagle, as if we are going to protect it as the most precious of those symbols. It does not matter to me whether someone comes with a sledgehammer and defiles a tombstone of a war hero by saying, ``I do this because I do not think this slate of granite warrants being on top of your sacred body.'' I do not care whether they do it when they smash it because they say, ``I do this because I protest you and the war that you fought in,'' and so on. The end result is the tombstone is destroyed. That is the story I want to get across about the flag. If it is the flag we wish to protect and not amend the first amendment, not make choices among the types of speech we can engage in, then let us protect the flag--nothing else. As I said, I do not care whether someone takes that flag and lights the flag and burns it in this Chamber offering it up as a sacred symbol for all who died in the name of this country or grabbed it and burned it because they are protesting the grotesque policy of the United States on such and such. The end result is the national symbol is burned. And when we go beyond protecting merely the symbol, we go to choosing, making choices among the types of speech we will allow Americans to engage in. I oppose the amendment because it puts the flag on a collision course with the Bill of Rights. Let me expand on that. The proposed amendment gives the Congress and the 50 States the power to prohibit the physical desecration of the flag. And that word ``desecration'' is loaded. It is loaded with ambiguity. It is laden with value. And it will inevitably lead to trouble. To desecrate, like beauty, is in the eye of the beholder. Here is what the dictionary says desecrate means: To divert from a sacred to a profane use or purpose; to treat with sacrilege; to put to unworthy use. So to determine whether an action desecrates, we must first make a value judgment about what the message the actor is trying to convey is. We usually talk about desecration in terms of our religious values--to desecrate a cross or a crucifix, to desecrate a menorah, to desecrate a temple, to desecrate a church, to desecrate a sacristy, to desecrate a host. Although I revere the flag, I do not put the flag on the same level as the sacred symbols of our varying religions. It is a different thing. We have never decided that any of our civil actions should rise to the level of spiritual undertaking. And so when you talk about desecration, you have to understand that you are applying and allowing the application of value judgments that we will attach to the actions of the actor who is desecrating the flag. Does he mean to profane the flag? What does that mean? Obviously, we have to determine that subjectively, whether it profanes the flag. Does her action treat the flag irreverently or contemptuously? Is the flag being put to an unworthy use? When we make those kinds of value judgments, we are not making the act of burning the flag a crime. We are making the message behind the act the crime. I will refer to this later. But is it in fact putting the flag to an unworthy use to put it on the side of a hot dog vendor's stand? Maybe that is all right. In one community, they may say that is a good idea. How about the guy who runs the pornographic theater, and on one side of the marquee he puts some lewd and obscene or profane or pornographic title of a film being shown inside and on the other side he drapes the American flag. Is that putting it to an unworthy use? How about the woman who buys the revealing thong bikini that is made in a flag. Is that profaning the flag? Is she to be arrested? How about the woman who buys the $5,000 sequin dress that has a flag on it? Is that profaning the flag? Does it matter what her figure is like to determine what use the flag is being put to? I rode in a parade recently in my home State, and it was a parade that was honoring the war dead. It was Memorial Day. We went by on Union Street in Wilmington, DE, the home of a black veteran, and he proudly had his flag flying on his front porch on a row house, and on the other side of the flag sewn perfectly so it was the exact same size was the African national symbol, black, red, and green. Is that profaning the flag? He meant it out of respect. He was a war veteran. If I am not mistaken, he had been president of one of our veterans organizations. Is that profaning the flag? Well, in Maine, maybe it would not be profaning the flag. In southern Delaware or Alabama it maybe would be viewed as profaning the flag. Who makes those choices--the local constable, the local cop, the local censor? That is the crux of my objection to this amendment. It makes not the act but the message the crime. And in doing so it gives the Congress and the States license to discriminate between types of speech they like and types of speech they do not like. But you do not have to take my word for it. Back in the bad old days, when I was chairman of the Judiciary Committee and subsequently as the ranking member, we held extensive hearings about the exact same amendment 5 and 6 years ago, and we heard from its authors, then members of the Bush administration, noble and honorable men, and they pulled no punches to this question. They admitted right out that the goal was to allow the Government to discriminate between bad flag burners and good flag burners. More specifically, then Assistant Attorney General William Barr, who became Attorney General of the United States, and a fine one, in my view, in 1989 said that the message, ``Would permit the legislature to focus on the kind of conduct that is really offensive.'' He said that there is ``an infinite number of forms of desecration and that States would have substantial discretion in fashioning flag laws.'' One year later, Acting Assistant Attorney General Michael Luttig testified that the goal of the amendment was to ``punish only actors that were intending to convey contempt.'' Now, when I heard him say that, I wanted to make sure I did not misunderstand, so I asked Mr. Luttig point blank, would it be permissible under this amendment to pass laws discriminating between types of expression--not types of burning; you use the same match, same flag--but the type of expression that went along when you were burning the flag. Was that the purpose? And he said, ``That is correct. You could punish that desecration which you thought was intended to be disrespectful toward the flag and not that which in your judgment was not.'' If I am not mistaken, I remember the example I gave. I said, how about if there are two veterans at the war memorial, the Vietnam War Memorial, and they each go down and they have their own flag, and he kneels down before the wall, one of them, and one happens to be a woman. And she takes out the flag, very respectfully, puts it in an urn, puts a little lighter fluid on it and lights it, and says, ``I'm offering this flag up to purify the soul of my deceased husband whose name is on the wall and fought valiantly for his country in a noble effort.'' And another Vietnam veteran comes down and kneels down, takes out an urn, puts a flag in it, and puts lighter fluid on it and lights it, and says, ``I'm offering this flag up in anger for the wasted lives of my friends and brothers who are on this wall''--in anger--``for what my country did to them.'' If there is a park cop, a D.C. cop standing there, what does he do? And he says, ``Arrest the veteran who said he is burning this flag out of anger, but do not arrest the widow who is burning this flag to honor.'' That will be the first time in the history of the United States of America we passed a law that was constitutional--because, by definition, a constitutional amendment will be constitutional--that said, ``Government, you can choose to punish those who say things you don't like, and let those who say things you do like go for the same exact physical act that they engage in.'' Now, ladies and gentlemen, how does that stop? Where does that stop? Do we really want the Federal Government, let alone the 50 States, to be able to make those judgments that we have never allowed before? Lest anyone say to me that things have somehow changed this year, I point to the committee report that was just published by the Judiciary Committee. The majority views make it clear that viewpoint, neutrality--that issue I talked about earlier--is neither a goal nor an attribute of the proposed legislation. Here is what the attending committee report to this constitutional amendment says: ``The committee,'' meaning the Judiciary Committee, ``does wish to empower Congress and the States to prohibit contemptuous or disrespectful physical treatment of the flag. The committee does not wish to compel the Congress and the States to penalize respectful treatment of the flag.'' You all think I am kidding about this? Any of the people in this Chamber who listened, you get 1,000 catalogs in the mail, everyone from L.L. Bean to, I do not know, all these catalogs. Look at the catalogs you get for swimsuits. Look at them--not even ones you asked to have sent to you--and you will see the swimsuits, men and women's are flags--a flag. In some parts of my community, someone wearing a one-piece swimsuit with a flag on it would not be viewed as disrespectful, someone wearing a two-piece swimsuit would maybe not be, someone wearing a bikini may very well be. And you think--I know this is funny, but it is real. It is real. These are real things. You are going to empower some local cop, some local community, to make a judgment. If I show up in boxer shorts, a kind of swimsuit with a flag on it, no problem. If some young, 19-year-old, muscle-bound guy shows up in a bikini with it on, well, they may say that is kind of offensive, that is too revealing. Is that the business we want to get into? And, by the way, what is a flag? Is the flag a decal? You stick a decal on the side of a hot-dog vendor stand. Well, what is that? What happens if they take these little flags, these little decal things they hand out and put pins on-- some are stickers--and burn one of those? Is that desecrating the flag? Is that the business we want to get into as a nation? Also, this year the proponents of this amendment highlighted the testimony of former Assistant Attorney General Charles Cooper. Here is what former Assistant Attorney General Charles Cooper had to say a few months ago. [P]ublic sentiment is not neutral. Parenthetically, I would note that is a profound observation. [P]ublic sentiment is not ``neutral''; it is not indifferent to the circumstances surrounding conduct relating to the flag. If such conduct is dignified and respectful, I daresay that the American people and their elected representatives do not want to prohibit it; if such conduct is disrespectful and contemptuous of the flag, I believe that they do. I believe that, too. It makes my blood boil when I read the testimony of that young guy standing on the floor on the steps of the capitol in Texas saying, ``Red, white, and blue, I spit on you,'' and burning a flag. They are the kind of things that--fortunately, most of us were not around--they are the kind of things that literally start fights with people who do not have a lot of self-control in circumstances like that. And I probably would fit in that category. But what is the difference? We are going to allow--obviously, public sentiment is not neutral on anything. It is not neutral on what we say about--I happen to be a Roman Catholic. It is not neutral on how some of the far-right folks talk about my church. I do not like the way they talk about the Pope. I do not like the kind of comments they make. I find it offensive. I happen to be a member of the largest single denomination in the United States of America because 33 percent of us are Catholic. There are more Catholics in here than any other single denomination in the Congress, if I am not mistaken. Should we pass a law saying, ``It offends me. It offends me. You can't say those things about my church''? Is that a good idea? That is content. That is content. So when we talk about the public is not neutral, they are not neutral on anything. Should people have a right to stand up and offend us as some do and make pro-Communist speeches or what about these defiling Nazi types around this country? What about these militia guys, some of whom wear swastikas? I am not labeling all militia people, but some are. The white supremacists--it makes my blood boil when I hear what they say about our country, about Jews, about blacks. But, guess what, folks? They are entitled to say it. It offends all of us, 95 percent of us. So if I decide, as Mr. Cooper says, public sentiment is not neutral, it is not neutral on that, it is not neutral on the Ku Klux Klan, it is not neutral on white supremacist organizations, it is overwhelmingly opposed, so because it is not neutral, we go with a majority sentiment? Are we prepared to say that? Are we prepared to outlaw their speech? Well, it would make me feel good. I would like to do it. But if we go for them today, who do we go for next? How about the time when people stood up 40 years ago and made speeches about black equality, made speeches about the rights of blacks to participate in our society? The majority of folks in certain parts of the country, including my State, were not for that. Would they be able to pass a law in the State of Delaware saying you cannot say that? ``You're a rabble-rouser, talking about that 19 percent of my population that is black having equal rights.'' Probably a significant portion of the American public is offended by some of the more militant aspects of the gay and lesbian movement who stand up and make speeches about what their rights are. The fact that it is not neutral, that we are not neutral on that subject as a nation, then we have a right to outlaw it? I believe that this whole argument misses--the argument made by those who talk about whether we are neutral on it or not, that we should be able to act on what we are not neutral about--misses the greatest constitutional point. It misses, indeed, the genius of the first amendment. Here in America the majority, by and large, does not get to choose what can and cannot be said by the minority, or by anyone else for that matter. And the Government, more importantly, is constitutionally restrained from deciding what speech is good and what speech is bad. But that is precisely what the proponents of this amendment say it would do and should do. Let me be precise. That is what the senatorial and congressional proponents of this amendment mean for it to do. I really do not believe the vast majority of the members of the American Legion and the vast majority of veterans groups and the vast majority of Americans know that it will do this. I do not think they thought that one through. But that is precisely what the proponents of the amendment say it would do and should do. They would have the flag emblazoned with the slogan ``Government is great'' treated differently than one that says, ``Government is rotten.'' Get that flag, put on it, ``The U.S. Government is great.'' Does that deface the flag? Put on the same flag, ``The U.S. Government is rotten,'' and what is that? Is that OK? Well, as a U.S. Senator who has occasionally had some scurrilous things said about him because I am part of the Government and because I am who I am, I sure would like to have the power to pass a law saying, ``You can't say bad things about me, I'm part of the Government, only good things about me. If they are bad things, you can't say them.'' I would like all the newspaper editors in America to understand that from now on, we may have an amendment that you cannot say anything bad about a U.S. Senator, notwithstanding the fact we deserve it and I deserve it. Under this amendment, the State could send to jail the fringe artist displaying the flag on the floor of an art museum while giving its blessing to a veteran who displays the flag on the ground at a war memorial. That, I believe, is not content neutral. The State could, as I said, arrest the widow who burns the flag to protest the war that took her husband's life while smiling on the widow who burns the flag in memory of her fallen husband. I believe this type of viewpoint discrimination exacts too high a constitutional price to protect the flag. As Justice Jackson so memorably put it in the flag statute case of 1943: The very purpose of the Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials. . . If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion or other matters of opinion or force citizens to confess by word or act or faith therein. What it boils down to is this: This amendment, as presently drafted, allows the Government to pick and choose, to make flag burning illegal only in certain situations involving only certain circumstances and only if carried out by certain people and only for the time in question, because 2 years later, 5 years later, 20 years later, 40 years later, it can change. This discrimination is precisely and most profoundly what the first amendment forbids, and the amendment that works this kind of discrimination does not protect the flag, it censors speech. Another problem with the amendment is that it fails to define the word ``flag.'' This would add yet another layer of difficulty in interpretation and application and open the door further to inconsistencies among the States. Again, each State would have considerable discretion to craft its own definition, and, again, the possibilities are nearly endless. As Assistant Attorney General Barr testified, the legislation would be able to criminalize conduct dealing not only with the flag as we know it but with, and I quote, ``descriptions of the flag, such as posters, murals, pictures, buttons or other representations of the flag.'' Indeed, Mr. Barr, in speaking in favor of such a sweeping definition, said that it would, and I quote again, be: ``consistent with the Government's interest in preserving the flag's symbolic value because it recognizes that the desecration of representations of the flag damage that interest as much as the desecration of the flag itself.'' So in Maine, it might be a crime to draw a flag being fed into a shredding machine. In California, it might be a crime to wear a sequined dress in the pattern of a flag or a flag bikini or T-shirt. In Mississippi, the legislature might make it a crime to put a flag decal on the side of a hot dog vending machine. This sort of disparity among State laws, whether it is over the meaning of ``desecration'' or the definition of ``flag,'' is especially inappropriate here where we are talking about the Nation's symbol. This is not the symbol of Mississippi or Delaware, Alabama, South Carolina, California, Maine, or Montana. It is the national symbol. The reason it is worth preserving is because it unifies this diverse Nation, and the notion that a single State can determine what that should be is, on its face, preposterous. I understand that there is a possibility that the distinguished Senator from Alabama, Senator Heflin, and others, may have an amendment to amend this amendment to take out the right of the States to do this. I am not sure of that, but that is what I understand. That would be a positive step, because it is, on its face ludicrous--ludicrous--to allow each State to determine how much they are going to protect the national symbol. Some States in the past, and I do not say this disrespectfully, decided it should not be our national symbol and decided to have another flag. I do not want any State telling me what that symbol should be and how it should be treated. It is a national symbol. It is a symbol of the Nation, not of the States, and an amendment which will foster a crazy quilt of laws all across the map misses the point and an important one: It will be more divisive than unifying. Why is it any less reprehensible to burn a flag in Louisiana than it is in Montana? Why should we be able to wear a flag T-shirt in a wet T- shirt contest in Arkansas or Delaware and not in Florida or California? Moreover, constitutional rights and principles should know no geographic boundaries. A Delawarean should not be accorded greater freedom of speech than his neighbor across the way in Pennsylvania. A Californian should not have more due process rights than her cousin up north in the State of Washington. If we want to protect the flag, we should have one national viewpoint-neutral standard. The Constitution, after all, stands for proud and broad principles, not a patchwork of 50 different and idiosyncratic ideas. I agree that we should honor the flag. We should hold it high in our hearts and in our law, but we should not dishonor the Constitution in the process. With all due respect for my good friends, Orrin Hatch and Howell Heflin, I think this amendment does violence to the core of the first amendment principle of viewpoint neutrality. This is the price that I am unwilling to pay. But more to the point, it is a price we do not have to pay to protect the flag. We can do both: Preserve the first amendment in viewpoint neutrality, and we can protect the flag and preserve the first amendment at the same time. And that is what the amendment I now propose seeks to do. Amendment No. 3093 (Purpose: Proposing an amendment to the Constitution authorizing Congress to protect the physical integrity of the flag of the United States)

Mr. BIDEN

Mr. BIDEN. No.

Mr. BIDEN. If the Senator will yield, is it possible to consider--I guess it is a leadership decision--starting the vote at 8:25 and let the vote extend, so that those of us who are trying to get transportation out of the city on an 8:30 train could make the train? I will not insist on that, but if it is possible, that would be nice-- since no one else wants to speak and we are worried about getting people in here to vote. A couple of us want to get out of here. Is it possible to do that?

Mr. BIDEN. Yes.

Mr. BIDEN. I only need 7 minutes to make it to the train.

Mr. BIDEN

Mr. BIDEN. I wish to thank the Senators from Illinois and Massachusetts for their remarks on this important subject. The Violence Against Women Act is the first comprehensive measure aimed at making our Nation's streets, college and university campuses, and homes safer for women. Following extensive hearings, the Judiciary Committee unanimously approved the act, and Congress passed this landmark legislation. Subtitle D of the act, entitled ``Equal Justice for Women in the Courts,'' was an important part of that legislation. As described by my colleagues, this provision encourages the circuit judicial conferences to conduct studies of gender bias within their respective circuits and to disseminate their results. By enacting this provision, Congress intended to promote a greater understanding of the nature and extent of gender bias, to educate judges, and, ultimately, to reduce any bias. The Equal Justice for Women in the Courts Act takes us one step closer to achieving and maintaining equal justice under the law. It is an important part of an overall effort to ensure meaningful protection of the rights of those who were victimized by sex crimes, domestic violence, and crimes of violence motivated by gender. A majority of the Federal circuits have already established gender bias task forces. Some circuits have expanded the mission of the task forces to include the study of racial and ethnic bias issues as well. I strongly believe that these studies and related education and training programs are critical to understanding whether there is any disparate treatment in the courts and, if so, what steps the courts should take to address it. Task forces on gender, racial and ethnic issues have been endorsed by, among others, the National Commission on Judicial Discipline and Removal, the Long Range Planning Committee of the Federal Courts and, as noted by my colleagues, the Federal Courts Study Committee and the Judicial Conference of the United States. As ranking member of the Judiciary Committee, and as the author of the Violence Against Women Act and the 1994 crime bill, I wish to join my colleagues in expressing my strong intent, that the Federal judiciary is authorized to use funds appropriated for violent crime reduction programs, as set out in title III of fiscal year 1996 Commerce-Justice-State appropriations conference report, to study gender bias and other related barriers to equal justice in our courts.

Mr. BIDEN. I say to my friend that he is absolutely categorically correct. And there is one other piece of this. After years of hearings, extensive hearings on the issue of violent crime in America--I realize it does not mean much in the new process; you just do appropriations-- but after years of hearings, there are only a few things that we know about crime. The Senator, as a former prosecutor, knows this better than the Senator from Delaware. If there is a cop on one corner, and there is not a cop on the other, it is much more likely that the crime will be committed where the cop is not. I mean it sounds bizarre. We do not know that much about criminal behavior except we know that where there are cops and where there is light there is less crime--prevention of crime; let alone the arrest and prosecution, prevention of crime. So the purpose of the 100,000 cops and the purpose for the request from the cops was that they are outmanned, they are outgunned, and they are outwitted because of all the array of technology, the new and the different nature of crime in America. That is why we need more cops. That is why they asked for them.

Mr. BIDEN. That is true. If I can expand 60 seconds on the answer, I say to my friend that 30 years ago for every crime committed, every felony committed, there were three cops. Today for every three crimes committed there is one cop. There used to be three cops for every felony committed. Now we have for every cop three felonies committed. Of the 20 largest States in the Nation, if you look at the last 10 years, the increase in their police force is about 1 percent. Even though the populations are growing, the crime wave is growing above that. The 30-to-10 number the Senator suggests I cannot swear is the number, but it is close.

Mr. BIDEN. Mr. President, it is my understanding that there is roughly 1 hour 40 minutes under my control. Is that correct?

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

Mr. BIDEN. Mr. President, let me point out to you, if you are in Alaska you will get $1.495 million less; if you are in Colorado, you get $3.822 million less; in Delaware, you get $1.532 million less; in Maine, you get $1.050 million less; in Maryland, $8 million less; in Massachusetts, $8 million less; Missouri, $2 million less--I am rounding these numbers down--in Montana, $1 million less. I did not think that was the deal. There are more problems with what they did with prisons in this conference report. In the crime law, it permits all States to qualify for one or both pots of the prison money. There are two pots of prison money. There is 50 percent for general grants that essentially all States receive because there are no hard strings or conditions on these dollars, and 50 percent of the money is to go to States which meet the truth-in-sentencing standards we set out. The Republican conference also splits prison dollars into two pots, but States are forced to choose either one or the other, even if they qualify for both. This is the second reason why so many States will get so many fewer prison dollars on a Republican conference report. It seems to me to be written by Speaker Gingrich to favor only the biggest States. There is a third problem that most Senators will be hearing about from the prison officials in their States. I know none of the Senators is likely to be listening to this. They are doing other things, including being in conferences and hearings themselves, but in addition to the Senators on the floor, warn your Senators and be prepared that if this becomes law, you will get a call, most of you, from your home State. You will have to answer them, ``Why did you cut the money for prisons in my State? Why did you do that?'' I strongly urge you to take a look at this little chart that I have just printed in the Record. To illustrate the problem with these changes, conditions, let me review the situation from my home State. First of all, truth-in- sentencing grants: The conference report changes both the standard and the language so that despite the fact that Delaware, unlike all [[Page S 18144]] but one other State in America, keeps its violent criminals behind bars for 90 percent of the time for which they are sentenced--unlike Pennsylvania or Maryland, my neighboring States, or New Jersey, it is one of the highest rates in the Nation, according to the Bureau of Justice Statistics--because Delaware State law only refers to a 75 percent floor, Delaware is not eligible for truth-in-sentencing grants under this little change. Second, general grants: The conference changes the rules to require increased time served by State prisoners since 1993. Well, Delaware's truth-in-sentencing law came into effect in 1990. We have been doing the right thing since 1990. But, no, it gets changed. Delaware cannot increase the time served since 1993 since we already did it in 1990. You cannot get above 100 percent. That is just one illustration how my State and many others are going to be out in the cold. It is one illustration out of the conference report that cuts prison dollars for a State. I am sure there are other explanations where other States will have their prison dollars slashed if this conference report were to become law. My staff has prepared this for me, and the title of the next section is ``Why Does Utah Do So Well?'' The conference report includes a special exception, one that appears to help Utah and perhaps a few other States, in the truth-in-sentencing prisons. Section 20104, subsection (a), subsection (3) permits only those States with indeterminate sentencing to meet the 85 percent truth-in- sentencing standard if they serve 85 percent of their time under the State's sentencing and release guidelines. Translated, if you have indeterminate sentencing, you get the money. Well, far be it for me to criticize that. Some day I hope to be chairman of the committee again and I hope to take unfair advantage of the process for my State. I am not criticizing, but I am complementing my friend from Utah. He does what a good chairman should do. He changed the law to benefit his State at the expense of other States. I understand that. I would do the same thing if I were in his position. It is legitimate. But I just point out that Utah has indeterminate sentencing. Second, the term ``sentencing and release guidelines'' has some circular logic. The only way someone can get out of prison under an indeterminant sentencing law is either when they have served a maximum sentence or under some sort of release guideline. So this definition is a self-fulfilling prophecy. Prisoners have to serve 100 percent of the time they have to serve. That is kind of fascinating, is it not? If it is indeterminate, you say at the end of this, they served all the time they were supposed to serve so now they served 100 percent of their time so now you qualify for that pot of money. I think it is really good. I mean, it is admirable. If I become chairman of the Judiciary Committee again, assuming I get reelected, which is certainly an assumption, and assuming the Democrats take back this place, I want to hire one of the staffers who gave this idea to Senator Hatch, because it is magnificent. The only States in the Union that really do not keep their folks in prison are the ones with indeterminate sentences, but they are the ones who qualify to be the toughest because, by definition, you would have kept them in as long as they were supposed to be in because you never said how long they had to be in. So, then, all of a sudden, when you release them, they had been in all the time they were supposed to. That is brilliant, absolutely brilliant. But it does not have a darned thing to do with what was the intent of the law. This is a definition of a self-fulfilling prophecy. The bottom line of all this is 34 States can expect to lose prison money under this conference report. Again, I have to admit, I admire the ingenuity of my friends. I might add, though, it is easier to do this--I wonder what would happen if we had to vote as if this were a crime bill. If this were a crime bill, you would have to defend that. You would have to defend it. You would have to stand up and say why that is a good idea, and I would beat you. I would beat you even on your side. I would even get Republicans to vote with me. But you figured out a way to keep that from happening. You put it in an appropriations bill so we do not have to do that. We can avoid the messy stuff of legislating. We can avoid the messy process of having to stand up and vote on this stuff. Do you remember how many votes we had on prison funding when we had the crime bill up? It went on and on and on. The reason I point this out again--I mean this sincerely--is not to criticize Senator Hatch. I think it is a great idea. I think if I were he--I wish I had thought of it. But I want to tell you, the bottom line is 34 States are going to get less money. If we voted on that, from my 23 years here, the calculus usually means 34 States beat the remainder. But, I say to the ranking member of the committee, these guys did it well. They did a good job. They really rode you. You did not have the votes. I know you fought like the devil on this one, but they did it well. This is really a masterful piece of work. In the absence of my friend from South Carolina from the floor--I do not want to get him in trouble, but he is the guy primarily responsible for getting me elected, if anybody had helped me, in 1972. But I kind of have a growing resentment toward him. He did not tell me to get on the Appropriations Committee when I got here. I thought you legislated here. I thought the process was, you were to get on authorizing committees. If I wanted to change the criminal justice system, I thought I was supposed to get on the Judiciary Committee. I did that, and I became the senior Democrat on that committee--sometimes running it on the minority side, sometimes the majority side. It took me all this time to figure it out, you steered me wrong, Boss. You did not send me the right way. I should have gone to appropriations, because anything I do in that committee--it took me 6 years to put this bill together. We fought it and fought it and fought it and fought it, and when you came up with harebrained ideas like indeterminate sentencing qualifies, I was able to whip you straight up and down. But now I do not even get a chance to do that. So, I am at some point going to offer an amendment saying that the U.S. Senate should meet as a Committee of the Whole, and we should call ourselves the Appropriations Committee, and we all get a chance at this. I would like to get in on this. Russell Long, Senator Long, with whom I served for a long time--not nearly as long as the Senator from South Carolina did--used to use that expression ``I ain't for no deal I'm not in on.'' It is obvious I am not in on this deal anymore. I authored the bill, but I am out of it. I do not even get to debate it in the usual form where you get to vote on it. If my friends are willing to have a freestanding amendment on this, we could ask unanimous consent to waive the rules to allow a vote on the prison funding piece. I would welcome that. In the interests of fairness, they might be willing to do that. What do you think? I know the Senator from Massachusetts would support me in that effort, I expect. Maybe we ought to do that. But I have a feeling we are not going to get to do that. There is another effort that is already underway. That is that thing called the Drug Court Program. This is a long-overdue drug program to crack down on--let me give you the numbers--600,000 drug-abusing offenders who are on our streets today, subject to no random drug testing, no mandatory treatment, and no threat of punishment. Let me translate that for you. Mr. President, 600,000 folks who were arrested--actually there were about 1.4 million or 1.6 million arrested in America--1.4 million. And here is what happened. There are a total of 2.7 million State offenders who are on probation. There are 1.4 million drug offenders on probation. There are 800,000 of that 1.4 million who are being tested and treated. And there are 600,000 convicted--convicted--convicted drug offenders; not arrested. These are people who either pled guilty or have been convicted in a court of law, who are on the street--no probation, no parole, no testing, no treatment, ``no nothin','' as my Aunt Gerty used to say, ``no nothin'.'' So we came up with an idea. We actually got it from a Republican judge in Delaware, and Dade County, FL. It is [[Page S 18145]] called drug courts. Let me tell you what drug courts do. They capture those 600,000 folks and they say, ``Here is the deal. You either--you are subject to random drug testing. If you have a job, you have to keep a job. If you are in school, you have to stay in school. You have to show up for intensive probation. And if you do not do any of those things, you go to jail--probably one of the boot camps which we funded.'' But my Republican friends--who I think are getting soft on crime, if not soft in the head on this stuff--they decided we might as well let those 600,000 folks wander the streets, every one of whom is an accident waiting to happen. Every one is an accident waiting to happen. Before they put drug courts in Dade County, FL, the rearrest rate for one-time drug offenders was 36 percent. After several years of these drug courts, the rearrest rate is down to 3 percent. These work and they work in my State. But what is the wisdom here? It is better to be soft than tough? Let us do away with this program. The Justice Department has already funded efforts to help local officials plan 52 new drug courts, begin 5 new drug courts and expand 8 other drug courts including one in my home State, that a Republican court, a Republican judge, a Republican attorney general have put together. Despite this concrete record of success, the conference report would eliminate the separately targeted $150 million Drug Court Program and require States to fund drug courts, if at all, out of the money that could be spent on hiring cops on the beat. In real terms, this could mean about 85,000 drug-abusing offenders will not be subject to drug testing and mandatory treatment. The other provisions of the 1994 crime law that are not affected by this bill are also proving to be very effective in combating crime, such as provisions against sexual offenders, death penalty provisions, the Brady law, the criminal alien provisions. The reason I say ``not affected,'' remember we had this debate before. My Republican friends decided what they were going to do is cut money for the violence against women legislation and do it by the appropriating process. Do it that way. Legislate it that way. And the distinguished Senator from South Carolina came along and said--which he always does, and I am grateful--``By the way, Joe, let me tell you what is coming.'' And through his leadership we sort of just stood up and said, ``Hey, look what they are doing.'' We didn't do anything special. They insisted they were going to make the cut. We were going to debate it. We hung on, hung on, hung on, and the very guy who suggested the cut--and I admire him, I truly do, Senator Gramm of Texas--he ended up introducing the amendment to restore the money for the violence against women law. So it is not cut here. I guess my Republican friends have heard the call that they had better not fool around with that piece of it. The reason I am taking so much time today knowing that this is going nowhere anyway--it is going to be defeated--is this is my attempt to play a small part in raising the same kind of call. The new call is OK. We finally got the Republicans to not fool with the violence against women law. They are not going to. They will not have the nerve to try to cut that again. They will not have the nerve to try to cut it again. But guess what, folks? They are now going after your cops. The answer is going to be, look, we are not cutting anything. The total dollars are cut, but we are not cutting anything. We are just telling the States we are giving you a pot of money and you do with it what you want. So if you want to hire the cops, you can hire the cops.

Mr. BIDEN. Let us look at these cuts to Federal law enforcement. The conference report cuts $5 million from the $54 million boost requested for the DEA by the President. Again, we hear a lot of talk about how we need more to fight illegal drugs, and there is much finger-pointing about that the administration should do more, and they should. But in the end, it is the Congress that fails to fund the drug enforcement request of the President. In yet another important area, let us review what has happened in interagency drug enforcement. The organized crime and drug enforcement task forces combine the efforts of the FBI, the DEA, U.S. attorneys, Immigration and Naturalization and the Marshal Service, Customs Service, U.S. Coast Guard, and the Internal Revenue, all working together in 13 regional task forces to target and destroy major narcotic trafficking organizations. And you need them all. The President requested $378 million for this program, but the Republican conference cut this amount by $19 million. This means that we will cut the important drug-fighting capacity below the 1995 level. In other words, you have all decided that the drug problem, I guess, is less worse this year than last year, notwithstanding all your speeches, with which I agree, that the problem is worse this year than it was last. But you decided to cut it. You did not decide to say we should restructure it or that the money is not being used wisely and we should redo it; you decided to keep the existing system and cut it. Let me also point out that the Republican conference report cuts the President's request for U.S. attorneys, U.S. prosecutors. Our Federal prosecutors are the ones who prosecute all Federal crimes. You cut this by $13 million. The President requested an increase of $86 million to boost Federal prosecutors, but the conference report backed away from this commitment. In short, the conference report cuts the President's request for Federal law enforcement. So our Federal effort against crime and drugs will be fought by fewer FBI agents, fewer DEA agents, and fewer Federal prosecutors than requested. I assume that is because you all think that there is less crime, that there is less of a drug problem, and there is less of a need to prosecute. If you believe that, this is fine, no problem. But somebody stand up and tell me that. Stand up and tell me that is the reason why you cut it back. If you tell me you cut it back for budgetary reasons, then I say, fine, you have made your priority choice. You have chosen other things to spend money on, or to cut taxes for, rather than on these. That is a legitimate position to take. But do not get up and tell me how you want to fight crime, how it has gotten so bad, how it is so terrible, how we want to move so rapidly on it, but, by the way, we can all do it with less money and effort. That does not work. That does not work, I respectfully suggest. It may work politically, but not practically. I would like to return to the merits of the 1994 crime law. The 1994 crime law, in my view, and in the view of law enforcement officers across the country, is working. The passage of the major $30 billion anticrime package last year capped a 6-year effort to launch a bold and comprehensive and tough attack on violent crime in the roots of American communities. As we pass the 1 year mark, it is already clear that the major programs of the bill are working even beyond my expectations. Consider the 100,000 cops program. If this had been a typical grant program, the Federal Government would just now, at the end of the first fiscal year of funding, be preparing to issue its first awards. That is how it has worked in the six Presidential administrations I have been here for. They would be just now doing it. The better part of the year would have been consumed drafting regulations and preparing application forms before money could finally be disbursed at the end of the year. The implementation of the 1994 crime law stands in stark contrast to this typical scenario. Instead of requiring burdensome applications that often fail to work and fill entire binders, a one-page application was developed by the Attorney General. Instead of waiting until the end of the year to distribute the funds, the money was awarded in batches beginning only weeks after the passage of the law. As a result, we find ourselves, at the end of the first year, with nearly all the fiscal year money out the door, with all of the funds having already been sent on their way to the States, and with more than 25,000 out of 100,000 new cops already funded in every State in the Nation. In a word, the law is working. In addition to the new police, the law's provisions combating violence against women are also working. The first criminal has been tried and convicted under the new Federal violence against women statute, resulting in a life sentence for Christopher J. Bailey, who kidnapped and beat his wife nearly to death. Otherwise, he would have only gotten a couple years in jail. In addition, charges have already been filed in another case. Every State has received a grant to increase the police, prosecutors, and the victim services to combat family violence. Rape shield laws have been extended to protect more victims. Women no longer have to pay for medical examinations to prove they are raped, which had been the practice up until now. The victims of rape are finally being treated like the victims of any other crime. These long-overdue measures mean that women are now being protected, instead of further victimized, by the criminal justice system. Another major accomplishment of the 1994 crime law is the military- style boot camp prisons. Crime law dollars are already at work helping 27 States plan and build and run military-style boot camps for nonviolent offenders. Boot camps allow States suffering from overcrowding problems to move nonviolent prisoners into cheaper space. Boot camps cost about one-third the price, per bed, as a conventional prison, and thereby free up space for the most violent offenders in conventional prisons. Yet, another effort that is already underway is the drug court program. But before I move to that, let me tell you what this prison program in the crime law would look like after it goes through this reincarnation, were the President not to veto this. The prison program in the crime law we passed last year was designed to [[Page S 18143]] meet two goals: First, to help States increase and then use to a maximum advantage the supply of prison space they have available to them. The second purpose was to encourage States to adopt the kind of truth-in-sentencing system that has been instituted by the Federal Government, to which I referred about 15 minutes ago. Today, prison systems in 34 States are under court order for overcrowding, and because there are not enough prison cells, many States are keeping violent criminals behind bars for roughly only 46 percent of the time for which they have been sentenced. Worse yet, 30,000 offenders, who each year are convicted of a violent crime, do not even see a single, solitary day in prison. That is, 30,000 convicted in State court systems of a violent crime do not see a single day in prison because the States either do not have the money or do not have the leadership or do not have the gumption to tell the taxpayers that if they want these tough laws, they have to build more prisons. The 1994 crime law is helping States respond to that problem with a $9.7 billion grant program. Under the 1994 crime law, States can use the money to build and operate additional secure prison cells for violent criminals or for boot camp prisons for nonviolent offenders, thereby freeing up secured prison space for violent offenders. Let me tell you about these boot camps. Today, there are 160,000 young, nonviolent minor offenders who are behind bars in costly prison cells. That just does not make any sense. They are nonviolent, they are first offenders primarily, and they are behind bars at more than what it costs per year to send your kid to Harvard or Yale. What this does, the crime law encourages States to take them out of those systems if they choose, put them in boot camps where you string barbed wire, you have the equivalent of Quonset huts. Make them engage in military-style activities to occupy them. It does not hurt marines or trainees. Surely, it will not hurt them at about one-third the cost. I am encouraged that the Republicans' prison proposal permits States to use the funds for boot camps. That is an important change, I might add, and I compliment them for that on the House bill. But the fact of the matter is, it is a big change. One of the key problems in the Republican prison plan is it permits States only to build or expand prisons, leaving out the ability to spend the funds to operate the present system. The State of Florida, when we had this debate on the bill, had built new prisons. They are sitting there with not a prisoner in them because they do not have the money to operate the prisons. They needed them badly but did not have the budget to operate them. This just does not make sense. When the 1994 prison provisions were written we heard from several States about these operating problems. A close look at the fine print in this bill reveals what I believe is one of the most troublesome aspects. While $617 million is appropriated for prison grants in the conference report, the Republican conferees raided $200 million of that fund to fund prisons in just seven or eight States. Let me explain that. The bill directly funds $300 million to reimburse States for the cost of housing criminal aliens in State prisons. That was a provision included in the 1994 crime law. I support that goal. On top of that $300 million in direct appropriations to reimburse States for incarcerating criminal aliens, language was slipped into the bill so that an additional $200 million was shifted from general prison grants for all States through the Criminal Alien Reimbursement Program. I assume that was a legacy of the Senator from Texas before he went to the Finance Committee. So that means a few States are going to get the money. I point out to my colleagues if you are not from Arizona, Florida, Texas, Illinois, New York, New Jersey, California, or Michigan, funds that should have gone to building prisons in your States have been stolen in this conference report. I think this is outrageous. I support the need to reimburse States for these costs, but in the 1994 crime law, we recognize that crime is plaguing all States, not just a few of the largest States in America. I have a list here that I ask unanimous consent to have printed at this point, entitled ``Conference Report Prison Funding--How Does Your State Do?''

Mr. BIDEN. Mr. President, I yield myself such time as I may use up to that point. I rise today in opposition to the Department of Justice appropriations in this conference report and an attempt by my Republican colleagues to rewrite the anticrime legislation on an appropriations bill. In my view, it is a lousy idea to rewrite crime policy on an appropriations bill, wiping out major programs the Senate created only last year after 6 years of extended debate and replacing it with new programs without review or debate and doing it all on an appropriations bill. It is unnecessary, in my view, and it is completely contrary to how the Senate has traditionally worked. I assume--and I see the distinguished chairman of the appropriations subcommittee is here--I assume it is because you cannot get the votes straight up and down to change the law through the authorizing process, because I have not seen anybody come here to the floor and say they do not want 100,000 cops. I have not seen anybody come to the floor and say they do not want the prison money the way it is allocated. The argument goes on. But it is kind of doing it in a way that obviates that kind of debate, discussion and votes on individual items within the crime bill. We all know that the Republicans have wanted to change the crime bill, and they have wanted to change it since it was passed, I assume in part because it has a Democratic label on it. I have not heard many other compelling reasons why it is a bad idea. But they say it is in their Contract With America to change the crime bill. I do [[Page S 18140]] not know anywhere under the Contract With America the American people said they do not want 100,000 more cops. I do not know of any police under the Contract With America who say they do not want to build any more prisons or who say they want to go back to the old LEAA days where cops could buy Dick Tracy watches, and small municipalities could buy armored personnel carriers, and you could spend money on public defenders instead of on a cop, which you can do now the way the Appropriations Committee has rewritten this legislation. I do not recall anybody who ran as a Republican on the Contract With America campaigning on those issues. The fact is that Senator Dole and Senator Hatch at least had the good grace to straightforwardly introduce a bill to change the 1994 crime law, and they have every right to try to do that. They introduced such a bill, but they have not chosen to act on it. No one has called up the crime bill. Where is the crime bill? I have been hearing since the day that Mr. Gingrich became Speaker and the Democrats lost control of the Senate that one of the first items on the agenda was a Republican crime bill. Well, bring it on. Where is it? Where is the Republican crime bill? Let us debate it. But, no, the Republican crime bill is now in the appropriations bill, allowing everyone to go back home and say, no, I did not eliminate the 100,000 cops; I did not eliminate the drug courts; I did not do that; I did not change any of that. All I did was vote for an appropriations bill to give you more flexibility. Translated, you do not get 100,000 cops. Translated, you do not get what is in the crime bill. Where is the Republican crime bill? Please bring it to the floor. I have been waiting to debate it. I can hardly wait. But it looks like I am going to wait until the next Congress, assuming I am here, which is not an assumption I am relying upon. This is a blatant attempt to sidestep the usual process in this body and, I think, by stealth to try to get it both ways. This bill is, of course, dead. Dead. Dead. It is not going nowhere, to use the vernacular. It may have the votes to pass here. I hope that allows you all to say that you have fulfilled your contract with yourselves, but you are sure not fulfilling a contract with the American people. I hope you will feel good about that and then maybe, after you come back, after the President vetoes this, we will go through this again. Let us do it straight up, because I want you to stand up on the floor and say, I do not want 100,000 cops. Say it. We will debate it. Take it to the people. Notwithstanding that we will be right back here doing this again in a few days, I should like to list and then explain some of the major changes this conference report proposes. First, as I have mentioned, it would eliminate the 100,000 cops program that was established a year ago in the crime law and maintained in the Senate appropriations bill. Because we had this debate, remember. We did this over here through the appropriations process. And as they say in the southern part of my State, ``Y'all lost.'' But never fear; Gingrich is here. So you headed to the other side, and you caved in in conference and now are back here, I assume in part, to be able to go home and say, ``We didn't cut the 100,000 cops program.'' We have already funded more than 25,000 new police officers across the country in this first year alone, and I challenge any of you to go home and hold a press conference and say you did not want those cops to come to your State--25,000. ``Moses'' Heston, better known as Charlton Heston, ran ads, was on an ad for months when we were debating this crime bill saying there was not even enough money in here for 20,000 cops. We already have 5,000 more than ``Moses'' thought would be in the bill, with 75,000 more to come--unless this became law. There are 25,000 that police departments across the Nation have already put in place, and police departments across the Nation have already applied for more than $0.5 billion in fiscal year 1996 to fund an additional 9,000 new cops, and these pending applications are now threatened by this conference report. In its place is a law enforcement block grant, the old LEAA Program, which is written so broadly that the money could be sent back to the States, could be spent on everything from prosecutors to probation officers, from traffic lights to parking meters, and not a single new cop. The block grant, this block grant that is in the bill now has never been authorized by the Senate. Let me explain why, when I wrote this bill in the first place, now the crime law, I insisted it go for cops. Because the way it works now is that in order to get a new cop at home the Federal Government will put up roughly $75,000 if the mayor, the county executive, or whomever puts up the rest. But it requires the mayor, the county executive, the Governor to step up to the ball, stop mouthing to their constituents they want more cops; they just cannot do it. But under this legislation, they will get the money and they will not buy the cop because when they buy the cop, they have to make a commitment they are going to keep that cop for 5 years and they are going to straightforwardly tell the voters, their constituents, that is what they are spending the money for. It is going to be a lot easier for them when they do the budget now to say, I can make it look like we are making progress here; we will not hire any new cops. We will pay for those traffic lights we were going to buy out of our city taxes with Federal dollars. I used to be a county councilman. That is what we did with the old LEAA money. We did not hire any more cops. What we did, we fired cops. We fired cops; we fired firemen; we fired law enforcement people who we were paying for with county funds and we rehired them with the Fed money. I see some of the staff on both sides are smiling. That is what we did, and that is what will happen again. Because then we would say--I will never forget sitting in a county council meeting. The chairman of our council was a very distinguished man, his name was C.W. Buck. I mean that sincerely. He was a very distinguished Republican. His father had been the Governor of the State of Delaware. I turned to Mr. Buck, saying, ``Mr. Chairman, how much will this cost us?'' He looked at me and said, ``It will not cost anything.'' I said, ``Why?'' He said, ``It is Federal money. We don't have to put up a cent.'' So in New Castle County, DE, and Wilmington, DE, we laid off cops, then hired them back with Federal money. What was the net effect? Not one ounce of additional public safety, guaranteed. Not one new cop. But, boy, it is real appealing when you are the county executive and real appealing when you are the Governor and real appealing when you are the mayor not to have to come up with any money, and then go tell your constituents what you are doing for them. Now, look, if Governors and mayors--if the reason you Republicans are doing away with this program is in the name of helping localities so they do not have to put up their money to get a cop, great. Under the existing legislation, they did not have to ask for a cent. There is no requirement that says, Athens, GA, must send in a request for more cops. Athens, GA, or Berlin, NH, they say, ``We don't want any more cops and we don't want any more Federal money.'' No problem. Send it to Delaware. We will pay. So in the name of helping localities, letting them, from a ``block grant''--that is a code word, folks. Block grant means ``we don't have to spend it for cops because cops cost us money. It costs us money.'' Governors and mayors and county executives, they have their budget people coming in saying, ``Look, Gov, look, Mr. County Executive, look, Madam Mayor, if you sign on to this, this means we have to, for the next x number of years, put in our share of what this additional cop is going to cost us.'' It is like what you find in most States. I have never been to a State legislative body--and I have been to a number and had the privilege of speaking to a lot of them--but Democrat or Republican, where they did not have, in the State legislature, debate that goes like this: ``You know, violent crime is an overwhelming problem in the State of x, and we must do more to fight crime. We're going to pass laws that increase the penalty tenfold, and we are going to do this, and so on.'' They do pass all the penalty laws. And then somebody has the temerity [[Page S 18141]] to say, ``By the way, we don't have enough prisons to put these people in. We don't have the prisons. There's not the space.'' And then what do those folks do? Do they go to you, the voters, and say, ``Well, you know, we have got to raise your taxes to build more prisons''? Oh, no. They tell you how tough they are, and then they let the folks out of prison. That is why, by the way, nationwide, if you live in the State of Pennsylvania, you live in the State of California, you live in the State of Texas, when you get sent to jail, you do not go to jail for the time for which you are sent. You get 10 years for robbery? You serve on average 4.6 years. But guess what? In the Federal Government, you get sentenced to 10 years, you go to jail for 10 years. Bingo. You ever wonder why folks do not want to be tried in a Federal court and they prefer to be tried in a State court, even in tough hang-them States like Texas and States like mine? Because they are not nearly as tough as the Federal Government, because we put our money where our mouth is. We have said, ``You do the crime, you do the time.'' It is called the Sentencing Commission. I authored it with several other people back in the early 1980's. And we do not fool around. The point I am making is one that is not popular to make, and I should not make, I am sure my political folks are going to tell me, but it is the truth. We let the States off the hook, we let the cities off the hook. They will not hire the cops, and that is what you all are doing. That is what you Republicans are doing here. It is not going to enhance public safety one iota. I want 100,000 new cops on the street. That is why I wrote the bill. We have roughly 550,000 local police officers. When this crime bill is all over and we spend $30 billion, if you all have your way, we will have 575,000 cops on the street, maybe. I want 650,000 cops on the street. We need more cops. Again, you do not have to ask for a single cop, Governor; you do not have to ask for a single cop, Madam Mayor; you do not have to ask for a single cop, County Executive. But if you ask, you have to kick in, and we will give you $75,000 per cop on average. Pretty healthy commitment by the Federal Government. Let me tell you what else this bill would do. This bill would completely eliminate or severely restrict other programs set up in the 1994 crime law, like the Drug Court Program, the Rural Drug Enforcement Grant Program, the Law Enforcement Scholarship Program, the Scams Program for fighting telemarketing fraud against senior citizens, that the Senator from Utah, the distinguished chairman of the Judiciary Committee, Mr. Hatch, authored and I coauthored. There are tried and tested programs that fight youth violence, for example, by putting boys' and girls' clubs in housing projects. Under the 1994 crime law, these programs were targeted for separate funds in addition to the funds for the 100,000 cops. But under the conference report of the Appropriations Committee, a mayor would have only the amount of the block grant out of which all efforts would have to be funded. The result would be that proven crime- fighting programs that the Congress voted to support last year would be effectively eliminated. I hear everybody talk, especially my good friend from Texas, Phil Gramm, talk about being tough on crime. And I hear a lot of my folks out there--a lot of folks on your side of the aisle--talk about a lot of these liberal mayors. Well, guess what the liberal mayors are going to be able to do with your block grant? They are going to be able to put it all in programs if they want. They can go out and put it all in boys' clubs and girls' clubs if they want. They can put it all in prevention if they want, and not one new cop if they want. Now, all of a sudden, I am amazed how trusting you are. I hear Senator Gramm and others talk about the liberal Conference of Mayors. Well, my Lord, you are a trusting bunch. You really are. You have seen the light. I guess you are for straight prevention now. What do you think the cities are going to do with this money? You and they are going to go out and hire cops? Oh, yeah, right. With their tight budgets? So you folks on the Republican side, I am amazed, have become the lily-livered liberals, what I am called over on this side. You all are the ones now changing the rules. You are changing the rules. Now that this can be all spent for prevention, who are the tough guys? I hope you are not going to stand up and make any more of those speeches about, ``Lock them up and throw the key away, and don't take my mama's gun away,'' the ones we hear, you know, rolled out every 4 months or so. Block grant means just that, it is a block grant: ``Here you go, Mr. Mayor, do with it what you wish.'' You all ran ads, your national party ran ads last election of prisoners dancing in tutus. I thought it was really good. It was a great ad. It shows these prisoners dancing in pink tutus saying, ``That's what the Democrats want to do.'' That is not what we did, but that is what you are doing. Can you imagine where this money would go if Jerry Brown were still Governor? And you talk about getting tough on crime? This is not tough on crime, this is just dumb. This just does not make any sense. If we are going to legislate by fiat like this, then we might as well do away with committee systems, with hearings, with subcommittee markups, with full committee markups, with careful consideration of authorizing legislation. We can simply do all our Senate business by appropriations bills, which is the way we are doing it these days. I guess I am number--I do not know. I do not know what my number in seniority is. I think I am 16, 17, 15, something like that. In light of the 99 decisions not to run again for office, if I get elected again, I may even be higher. I made the wrong pick. I came here to legislate. I should have gone on the Appropriations Committee. I made a big tactical mistake here. Had I gone on the Appropriations Committee, I would be the No. 3 or 4 ranking person on that committee. Why have a Judiciary Committee? Why have a Commerce Committee? Why do this? They do not legislate any of this. I ask a rhetorical question: Why did my friends, Senator Dole and Senator Hatch, not bring their crime bill to the Judiciary Committee to be acted on? Why did we not do that? I respectfully suggest it is because they did not have the votes to win. I respectfully suggest that in order to win, you would have to say, ``By the way, we don't want 100,000 cops added by this crime bill; we don't want more prisons built in this crime bill the way we had; we want to change it.'' Any of you who doubt what I am saying, any of the press who is listening to this, you go ask any chief of police in the United States of America, you go ask any superintendent of the State police in any State in America, you go ask the head of any county or city police organization, and you ask him or her whether or not they think they will fare better with their budgets for their city, State or county with a block grant that allows the legislature and the Governor to use it any way he wishes, or whether they will fare better with the proposal with 100,000 cops. You ask them. When I wrote this legislation, Mr. President, I wrote it by first calling in the six major police organizations and asking them, ``What do you need most to deal with the crime problem in America? What do you need the most?'' And they told me. So I wrote the bill with them in the room. They were the ones who said, point blank, ``If you don't require the Governors, the mayors to come up with some of the money for only cops, we won't get any new cops, because we're an expensive item. When we sit down in the budget process in our town or our city, we have to say to the mayor, `Mr. Mayor, if you hire this police officer, you are taking on a salary of X amount and benefits of Y amount and you are making a long-term commitment, and that is going to impinge on your budget not this year but every year that that cop is around.' But when you don't do it this way, Joe, what you do is you allow them to say they are fighting crime by putting lighting in parks. That is a one-shot operation and a utility bill. Putting up traffic lights, that is a one- shot operation. Hiring a probation officer,'' which I am all for hiring, which costs less money and allows the city or county or the State to reduce the rest of their State budget to do what they are already doing. This is not revenue sharing, this is about cops. [[Page S 18142]] Now, all that hyperbole about--I even heard one of our colleagues saying when we passed the Biden crime bill, it is now the crime law, I heard my colleague say, ``All this means is we are just going to hire 100,000 new social workers.'' I do not think there is anything wrong with new social workers. We could stand 100,000 new social workers in America. But this is about cops. Under the crime law, you cannot use the money for that purpose. But my crime-fighting Republican friends and the staff who helped them write this--I do not know if the staff realizes what a favor they have done for their principals. They have now allowed them to hire 100,000 social workers. We should rename the bill: ``The social worker bill.'' You can hire instead of 100,000 cops--there is not enough money left, you can only hire 75,000 new social workers. You cannot do that under my bill, under the crime law, and this is masquerading as fighting crime. I would like to briefly point out that another Republican plan in this conference report is to drastically cut Federal law enforcement as well. The conference report does the following: It cuts the FBI by $112 million below the President's request, so new FBI agents will not be hired; it cuts the Drug Enforcement Agency, the DEA, $5 million below what the President has requested for drug enforcement officers in this Nation; it cuts interagency drug enforcement by $15 million below 1995 and $19 million below what the President has requested; and it cuts Federal prosecutors by $13 million below the President's request. So much for your credentials of tough on crime. I do not know why you are doing this. Maybe it is because you want to give tax cuts to people making 250,000 bucks. But for my money, I want a prosecutor. I want a new DEA agent. I want more FBI agents. You cut all of them, every one of those areas you cut below the President's request. But as the saying goes, talk is cheap. Talk without commitment of dollars is meaningless. Republicans in the conference have failed to fund the President's request for Federal law enforcement despite all the talk about being for law enforcement. (Mr. BROWN assumed the chair.)

Mr. BIDEN. Surely.

Mr. BIDEN. I answer my colleague by saying the following: Look at the applications that have come in. I will once again compliment the Attorney General. Find me a cop in your State or in the State of California, New Hampshire, or South Carolina representative of Senators on the floor, or Colorado, who calls the process burdensome; the one- page application, No. 1. No. 2, of the applications every single month there are more applications than there is money. They would probably be able to sustain 200,000 more cops. I am pulling that number out. I do not know for a fact. I know there are more applications than there is money. Since my time is running out, I only have 3 minutes left, I am told, may I conclude rather than answer, on another question? I would like to reiterate that in its breadth the 1984 crime law reflects the lessons that have been learned over the past decade as we studied crime and law enforcement, and have worked on passing this law. And in its approach, [[Page S 18146]] as well as in its many specifics, the law was a result of bipartisan efforts. We should not retreat on this tough but smart crime package. It already is hard at work preventing violent crime across the country. We should not retreat on the 100,000 cops program that we insisted on just a few months ago. Let me point out that the $30 billion crime trust fund that uses the savings from cutting 272,000 Federal bureaucrats--160,000 have already left--pays for every cop, for every prison cell, and for every shelter for a battered woman and child. That is provided for in this crime bill without adding to the deficit or requiring 1 red cent additional in taxes. That was the deal we made right here on the Senate floor 1 year ago. Now my Republican colleagues are trying to block out what we did, and back out of the deal by refusing to write the checks for next year's funding of the crime law. The money is there in the trust fund. I have tried today to outline my objections to the Republican retreat represented by this conference report on the key provisions of the anticrime law last year. So I urge my colleagues to consider very carefully whether this is the right form, the right idea, to dismantle these vital parts of the already successful and highly popular crime bill. In the end I suspect that the merits will speak for themselves, and the American people will decide whether it is a good idea to take this trust fund money and spend it on 100,000 cops and the other programs here, or reduce it and send it out in block grants. And $525 million in applications are out there as we speak. Already, as of November 16, the Justice Department has received applications for an additional 9,100 cops under the 100,000 cops program beyond the 26,000 that have already been granted. This is concrete evidence that the 100,000 cops program is working, is necessary, is local, and is needed. The shift to a block grant is wrong for many reasons. The 9,100 additional police that are all ready to go and waiting for us only to finish this political debate, is the most important reason why to shift the block grant is the wrong thing to do. Let us not try to change horses in midstream. This program is working. If my Republican friends need to be able to say they have a Republican crime bill so that they can meet their contract pledge, let them pass the antiterrorism bill that we passed. It is the Hatch-Biden bill. Let us call it the Hatch-Republican bill. Let that be your crime bill. You can go back to your Republican conservative friends and say, ``You have a crime bill''--in order to meet a pledge that no one signed on to to dismantle one of the few big Federal programs that is working, working well, working without additional bureaucracy, and to do the job. Let me say in final conclusion, if you doubt what I am saying, I challenge you to go home and find out that for every new cop that this new bill has in fact funded so far, just ask the police chief, or the commissioner of police, for whom that cop works, to list the number of dollars that cop has made. Then go get the names of the people that police officer has collared, has arrested--the criminal who he gets who names the victims. And then you go ask those victims whether or not this crime law made any sense. This all comes down to the little tiny things, and the little tiny things here are making sure there are fewer victims of crime, and that those victims are in fact getting their day if court, and that they find the bad guy. That is why we need more cops. Mr. President, I rise in opposition to the Department of Justice appropriations in this conference report and the attempt by my Republican colleagues to rewrite anticrime legislation on an appropriations bill. Procedural objections It is, in my view, a terrible idea to rewrite crime policy--wiping out major programs the senate created only last year and replacing them with new programs without review or debate--on an appropriations bill. It is unnecessary and completely contrary to how the Senate has traditionally worked. We all know the Republicans want to change the crime law now at work. They said so in their Contract With America. House Republicans passed a new bill. Here, Senators Dole and Hatch introduced their bill to change the 1994 crime law. They have every right to try to do so. But they have not chosen to do so. Their bill has never been acted on by the Senate, or even had one hearing. Instead, what we now have with this conference report is an attempt to change the current law by lifting entire parts of the crime bill passed in the House and attaching them to this appropriations bill. That House crime bill has already been rejected by the Senate when we amended the appropriations bill to restore the 100,000 cops on the beat program a couple of months ago. This blatant attempt to sidestep the usual deliberative process of this body is, I believe, a terrible way to make law. This bill is, of course, dead. It will be vetoed because, among other reasons, it eliminates the commitment the President and Congress made to the American people to get 100,000 cops on the beat. And it will continue to be vetoed until my Republican colleagues get the message that there will be no new crime bill without the 100,000 cops on the beat program. The Senate has already rejected this bill without the 100,000 cops program and it should do so again. Overview of the problems with the bill Notwithstanding that we'll be right back here doing this again in a few days, I'd like to list and then explain some of the major changes this conference report proposes. First, as I've mentioned, it would eliminate the 100,000 cops program established 1 year ago in the crime law and maintained in the Senate appropriations bill. The 100,000 cops on the beat program has already funded more than 25,000 new police officers across the country in its first year alone. And police departments across the Nation have already applied for more than one-half of a billion dollars in fiscal year 1996 to fund more than 9,000 new police. These pending applications are now threatened by this conference report. In its place is a law enforcement block grant program that is written so broadly that the money could be spent on everything from prosecutors to probation officers to traffic lights or parking meters--and not a single new cop. This block grant has never been authorized by the Senate. Let's be clear on what is being done here. What this conference report does is take a crime bill that has been passed only by the House, whose funds have been authorized only by the House, whose block grant idea has already been rejected by the Senate, and incorporate it into the appropriations bill so it is passed and funded--all in one fell swoop. I will speak more about the 100,000 cops program in a minute, but let me note that, in addition, the bill would completely eliminate or severely restrict other programs set up by the 1994 crime law--programs like: the drug court system, the rural drug enforcement grant program, the law enforcement scholarship program, the SCAMS Program fighting telemarketing fraud against senior citizens, and tried and tested programs that fight youth violence, for example, by putting boys and girls clubs in housing projects. Under the 1994 crime law, these programs were targeted for separate funds in addition to the funds for the 100,000 cops program. But under the conference report, mayors would have only the amount of the block grant--out of which all efforts would have to be funded. The result will be that proven crime-fighting programs that the Congress voted to support last year would be effectively eliminated, all without any consideration by the Judiciary Committee or the full Senate as to the wisdom of these changes. And all with the strong opposition of the Nation's law enforcement community. Mr. President, if we are going to legislate by fiat like this, then we might as well do away with committees, with hearings, with subcommittee markups, with full committee markups, and with careful consideration of authorizing legislation. We could simply do all the Senate's business on appropriations bills. I, for one, happen to believe that's a terrible way to proceed and I believe [[Page S 18147]] that's reason enough to oppose this bill. The American people are not well served when major policy changes are made under the time limits facing us on these appropriations bills. If the Republicans want to change the crime bill, they have the right to try--but let's do it the right way and then let's vote on it. Wiping out major pieces of the most significant anti-crime legislation ever passed by the Congress on an appropriations bill makes a mockery of our Senate process. The importance of the programs we are considering, not to mention the perception of our institution, demands better. But, given that we are here, I will insist on a full opportunity to debate with my colleagues the merits of last year's crime law programs affected by this bill. Before I do that, I first want to briefly point out that another Republican plan in this conference report is to drastically cut Federal law enforcement. This conference report cuts the FBI by $112 million below the President's request--so new FBI agents will not be hired; cuts the Drug Enforcement Agency by $5 million below the President's request; cuts interagency drug enforcement by $15 million below 1995 and $19 million below the President's request; and cuts Federal prosecutors by $13 million below the President's request. Let me address these cuts to federal law enforcement. The president requested an increase of $337 million for FBI agents and other FBI activities--but the Republicans cut $112 million from that request. We frequently hear claims in Congress of how much we support law enforcement. But, as the saying goes, talk is cheap. Talk--without the commitment of dollars--is meaningless. The Republicans on the conference have failed to fund the President's request for Federal law enforcement, despite all the talk about being for law enforcement. Let's look at these cuts to Federal law enforcement: the conference report cuts $5 million from the $54 million boost requested for Drug Enforcement Agency agents by the President. Again, we hear a lot of talk about how we need to do more to fight illegal drugs, and there is much finger-pointing about how the administration should do more--but in the end it is the Congress that fails to fund the drug enforcement requested by the President. In yet another important area, let's review what has happened in inter-agency drug enforcement. The organized crime and drug enforcement task forces combine the efforts of the FBI, Drug Enforcement Agency, U.S. Attorneys, Immigration and Naturalization Service, Marshals' Service, Customs Service, U.S. Coast Guard, and the Internal Revenue Service--all working together in 13 regional task forces to target and destroy major narcotics trafficking organizations. The President requested $378 million for this program--but the Republican conference cut this amount by $19 million. This means that we will cut this important drug-fighting capability below the 1995 level. In other words, we are not talking about less of an increase--we are talking about cutting a significant part of this program. Let me also point out that the Republican conference report cuts the President's budget request for U.S. attorneys--our Federal prosecutors--by $13 million. The President requested an increase of $86 million to boost Federal prosecutors, but the conference report backed away from this commitment. In short, this conference report cuts the President's request for Federal law enforcement. So our Federal effort against crime and drugs will be fought by--fewer FBI agents; fewer DEA agents; and fewer Federal prosecutors. What is one to conclude from the efforts of the Republicans to gut the 100,000 cops on the beat program and severely reduce Federal law enforcement? Is it that tax cuts to a few are more important than protecting the safety of average Americans? Now I'd like to return to the merits of the 1994 crime law. The 1994 Crime Law is working The passage of the major $30 billion anticrime package last year capped a 6-year effort to launch a bold, comprehensive, and tough attack on violent crime and its roots in American communities. And as we pass the 1-year mark, it is already clear that the major programs of the bill are working even beyond expectation. Consider the 100,000 cops program. If this had been a typical grant program, the Federal Government would just now--at the end of the first fiscal year of funding--be preparing to issue the first awards. The better part of a year would have been consumed drafting regulations and preparing application forms before money could finally be disbursed at the end of the year. The implementation of the 1994 crime law stands in stark contrast to that typical scenario. Instead of requiring burdensome applications that often filled entire binders, one-page applications were developed. Instead of waiting until the end of the year to disburse the funds, the money was awarded in batches beginning only weeks after passage of the law. As a result, we find ourselves at the end of the first year with nearly all the fiscal year's money out the door--all of the funds have already on their way to the States--and with more than 25,000 out of 100,000 cops already funded in every State in the Nation. In a word, the law is working. In addition to the new police, the law's provisions combating violence against women are also working. The first criminal has been tried and convicted under the new Federal violence against women statute, resulting in a life sentence for Christopher J. Bailey, who kidnaped and beat his wife nearly to death. In addition--charges have already been filed in another case. Every State has received a grant to increase police, prosecutors, and victim services to combat family violence. Rape shield laws have been extended to protect more victims. And women no longer have to pay for medical exams to prove they are raped--the victims of rape are finally being treated like the victims of any other crime. These long overdue measures mean that women are now being protected-- instead of further victimized--by the criminal justice system. Another major accomplishment under the 1994 crime law is the military-style boot camp prisons: crime law dollars are already at work helping 27 States plan, build, and run military-style boot camp prisons for non-violent offenders. Boot camp prisons allow States suffering from overcrowding problems to move non-violent prisoners into cheaper space--boot camps cost about one-third the price per bed than conventional prisons--thereby freeing up space for most violent offenders. Yet another effort that is already underway is the drug court program--a long overdue program to finally crack down on the 600,000 drug-abusing offenders who are on our streets today, subject to no random drug testing, no mandatory treatment, and no threat of punishment. The Justice Department has already funded efforts to help local officials plan 52 new drug courts, begin 5 new drug courts, and to expand 8 other drug court programs (including one in my home State of Delaware.) Despite this concrete record of success, the conference report would eliminate the separately targeted $150 million drug court program and require states to fund drug courts, if at all, out of the money that could be spent on hiring cops on the beat. In real terms, this could mean that about 85,000 drug abusing offenders will not be subject to drug testing and mandatory treatment. Other provisions of the 1994 Crime Law that are not affected by this bill are also proving to be very effective in combating crime, such as the provisions against sexual offenders, the death penalty provisions, the Brady Law, and the criminal alien provisions. So, Mr. President, last year's crime bill has achieved an extraordinary measure of success during its first year in operation. Yet, despite all of these accomplishments under the 1994 Crime Law, the anti-crime law is still under attack by the Republicans. Just as the entire scheme of anti-crime initiatives is taking hold, they would eliminate or dismantle many of the law's critical programs and reverse the progress that is being made. [[Page S 18148]] So while it is important to note the success we are having in implementing the act, that is not enough. We must also review at this point why the 1994 Crime Law represents the right approach to reducing the problem of violent crime in this country and why Republican proposals would prematurely divert us off the right track and unwisely point us in the wrong direction. The merits of the 1994 Crime Law During the six-year period it took to enact this law, we undertook a major study and evaluation of the current system to pinpoint the weaknesses in anti-crime approaches. And for the first time, the Federal Government made a major commitment to help states and localities--where 95 percent of crime occurs and is prosecuted--redress the greatest shortcomings of our system. In the course of the crime study, six key shortcomings of our current system became evident: 1. Most importantly, we do not have enough police out on the streets and in our neighborhoods. 2. We do not have enough prison cells for violent offenders --so they end up serving, on average nationwide, only 46 percent of their sentences. 3. We have not come up with an effective response to criminals who abuse drugs. 4. We do not treat family violence as serious crime. 5. Our police are outgunned by criminals. 6. And our nation's troubled children--who are growing up in a world of illegal drugs, guns, crime and violence--don't have safe places to go and lack positive activities to motivate them toward productive endeavors. The comprehensive anti-crime bill passed by the congress last year was designed to address each of these key shortcomings. This law is now providing an unprecedented infusion of Federal dollars to states and localities--to help them attack crime both at the back end--with more money for law enforcement and prisons; and at the front end--with more money for prevention programs that can help keep would-be criminals off the road to ruin in the first place. The Crime Law reflects the primary lesson learned over the last decade as we studied crime and law enforcement--that all of the shortcomings in our system must be addressed together, that correcting one without the others is futile--because crime offers no single, easy answer. I had hoped to spend this year watching over the smooth and speedy implementation of the law, while turning my focus to those substantial crime-related issues still before us--including a renewed fight against illegal drugs, and reform of our juvenile justice system as it struggles to deal with violent young criminals the current system was never designed to handle. But instead of building upon the success the crime law already is having and moving forward to critical new challenges, the Congress of the United States is in full retreat. The House has already dismantled the crime law, and now the Senate will decide whether it will follow suit. This premature about-face after finally putting in place the most comprehensive and carefully crafted set of anti-crime programs in our history is not only foolish but irresponsible. We owe it to the American people to follow through with the measures we promised them and which they demanded for the past several years. Let me address the merits of these programs. The 100,000 police program Let me turn first to the central provision of the new law--the 100,000 cops on the beat program that I will fight with all my might to preserve. I do not know a single responsible police leader, academic expert, or public official who does not agree that putting more police officers on our streets and in our neighborhoods is the best way to fight crime. Community policing enables police to fight crime on two fronts at once--they are better positioned to respond and apprehend suspects when crime occurs, but even more importantly, they are also better positioned to keep crime from occurring in the first place. I've seen this work in my home State of Delaware, where community policing in Wilmington takes the form of foot patrols aimed at breaking up the street-level drug dealing that had turned one Wilmington neighborhood into a crime zone. These efforts successfully put a lid on drug activity, without displacing it to other parts of the city. In practice, community policing takes many forms, but regardless of the needs of particular communities, the reports from the field are the same--it works. The 1994 crime law targets $8.8 billion for states and localities to train and hire 100,000 new community police officers over 6 years. Now, we all remember the criticism last year of the 100,000 police program. The cops program won't work, Republicans in Congress said. They got Charlton Heston to say in national television ads that it would never happen, that we would never see more than 20,000 cops. Well ``Moses'' could not have been more wrong. We already have 25,000 new local police officers on the streets of America--after only 1 year under the new law. And because of the way we've set it up--with a match requirement and spreading out the cost over a period of years--the money will continue to work, keeping these cops on the beat and preventing crime in our communities far into the future. But that progress will come to a screeching halt if my Republicans colleagues get their way. They have proposed and incorporated into this conference report a new law enforcement block grant--which has loopholes so big that it would permit all the money to be spent without hiring a single new police officer. Not one. Read their proposal. Money is sent not to police but to mayors, and the money may be used not only for cops but also for other types of law enforcement officers or for many other purposes or initiatives. Moreover, the money could be used for other vaguely defined purposes such as ``equipment, technology and other material.'' Let me repeat--under the Republican proposal the dollars can be diverted to prosecutors, courts, or other law enforcement officials. These may be worthy causes, but nothing in the Republican bill requires that even $1 be used to hire a single new police officer--and the one thing we know is that more community police officers means less crime. Look at the language of this bill. Not even one new cop is required. All it says is that ``recipients are encouraged to use these funds to hire additional law enforcement officers.'' That's it. Encouraged. Mr. President, American communities don't need our encouragement. They need more police. We should not encourage the States to keep the commitment this Congress made to the American people. We should keep our word. What this conference report does is take money that has been designated for cops on the beat and allows it to be used for a whole host of disparate purposes. That means only one thing for sure--the money will be wasted on things the Federal Government should not be funding. The great benefit of the 1994 crime law was that it gave States enough choice but also gave them enough direction. That direction is what differentiated this crime law from the failed crime laws of the past, yet that direction is precisely what this block grant throws out the window. That is the major flaw of the Republican block grant. I believe that the single most important thing our communities need when it comes to fighting crime is more police, and the current law guarantees our money will be used for just that purpose. We should not abandon it 1 year after enacting it. We must save the 100,000 cops program to ensure that the money for police is used only for police. Prison grants The second major shortcoming in the current system is prison space, and the prison program in the crime law we passed last year was designed to meet two goals: First, to help States increase--and then use to maximum advantage-- their supply of prison space; and second, to encourage States to adopt the kind of truth-in-sentencing system that has been instituted at the Federal level. Today, prison systems in 34 States are under court order due to overcrowding. [[Page S 18149]] Because there are not enough prison cells, many States are keeping violent criminals behind bars for only about half their sentences--46 percent is the nationwide average. Worse yet, 30,000 offenders who, each year, are convicted of a violent crime are not even sentenced to prison. The 1994 crime law is helping States respond to this problem with a $9.7 billion grant program. Under the 1994 law, States can use the money to build and operate additional secure prison cells for violent criminals--or for boot camp prisons for non-violent offenders, thereby freeing up secure prison spaces for violent criminals. Let me tell you about these boot camps. Today, 160,000 young, nonviolent, minor offenders are behind bars in costly prison cells. That just does not make sense. So the law encourages States to make the most efficient use of existing prison cells--by putting violent offenders in the most expensive cells, and housing nonviolent, minor offenders at one-third the cost of conventional prison space in military-style boot camps. I am encouraged that the Republicans' prison proposal permits States to use this funding for boot camp prisons--that is an important change from the house-passed appropriations bill. Key problems with conference prison plan One key problem with the Republican prison plan is that the plan permits States only to build or expand prisons--leaving out the ability to spend these funds to operate prisons. This just does not make sense, when the 1994 prison provisions were written, we heard several States had already built prisons, but could not open these prisons because of a lack of operating funds. A close look at the fine print of this bill reveals what I believe is one of its most troubling aspects. While $617 million is appropriated for the prison grants in the conference report, the Republican conferees raided $200 million of that to fund prisons in just 7 or 8 States. Let me explain--the bill directly funds $300 million to reimburse States for the costs of housing criminal aliens in State prisons. This was a provision included in the 1994 crime law, and I support this goal. But, on top of that $300 million in direct appropriations to reimburse States for incarcerating criminal aliens, language was slipped into the bill so that an additional $200 million was shifted from the general prison grants for all states to the criminal alien reimbursement program. So I point out to my colleagues--if you are not from Arizona, Florida, Texas, Illinois, New York, New Jersey, California, or Michigan--funds that should have gone to building prisons in your State have been stolen by this conference report. This is outrageous, I support the need to reimburse States for these costs, but the 1994 crime law recognized that crime is plaguing all states not just a few of our Nation's largest border States. Fighting drug related crime The third major shortcoming of our current system is the failure to limit drug-related crime. The new law provides money for specialized drug courts to target low- level drug offenders who are out on the streets breaking into cars and stealing to support their habits. In most communities, these offenders are now largely ignored by our system. They do not go to prison and they are not required to comply with drug testing or get treatment. Most are simply sent right back out on the streets on largely unsupervised probation--and they go right back to the cycle of drug use and crime to support their drug use. The heart of the problem is that, just like the prison populations, the probation and parole populations have exploded. More than 3.5 million offenders--half of them drug addicts--are now living in their communities under the nominal supervision of courts or corrections officers. According to the Justice Department, of the roughly 1.4 million drug- abusing offenders on probation, only 800,000 are subject to some drug testing or drug treatment. The remaining 600,000 drug-addicted offenders are on our Nation's streets each day, unsupervised, untested, with no fear of punishment. They are accidents waiting to happen. Many of these probationers are high-rate offenders. Hard-core addicts are estimated to commit up to 200 crimes a year to support their habits. As the number of probation officers has not kept pace with the growth in the probation population, probation caseloads now average 118 offenders. In some areas, caseloads can exceed 200. With so many offenders, officers are able to conduct only minimal supervision at best--perhaps 15 minutes a week. We know who these people are. Judges and probation officers have their names and addresses. So why do we ignore them? Drug courts are designed to take these offenders and their crimes seriously--offenders face random drug testing and mandatory treatment. And, if they slip back into drugs--they go to jail. Yet the Republican proposal totally eliminates drug courts. The bill wipes out all funding. We must preserve the necessary money to fund the drug courts. Prevention programs I turn now to an issue that has been the subject of more misinformation and outright mischaracterization than perhaps any other in the crime debate--whether we should work to prevent crime before it happens, instead of waiting until after the shots are fired, until after our children become addicted to drugs, until after more Americans' lives are ruined. The anticrime law enacted last year answered that question unapolo- getically. In addition to fighting crime, the law made a commitment to preventing crime--a commitment supported by virtually every criminologist, every legal scholar, every sociologist, every psychologist, every medical authority, and simple common sense. Those who study this issue agree that breaking the cycle of violence and crime requires an investment in the lives of our children--with support and guidance to help them reject the violence and anarchy of the streets in favor of taking positive responsibility for their lives. Prevention is also what cops want--what virtually everyone in law enforcement wants. Every police officer I have talked to, every prosecutor, every prison warden, every probation officer, says the same thing--we can't do it alone. And we can't do it all after the fact. And listen to local officials--the very people the Republicans say they want to give greater voice: Republican mayors Giuliani of New York and Riordan of Los Angeles say this: [B]y funding proven prevention programs for young people, the crime bill offers hope--hope that in the future we can reduce the need for so many police officers and jails. Listen to Paul Helmke, the Republican mayor of Fort Wayne, IN: [I]t's a lot less expensive to do things on the prevention side than on the police side. This unity among law enforcement was the force that drove the prevention programs into the 1994 crime law and into the appropriations bill as passed by the Senate just a few months ago. We need to give these programs a chance. If after a few years the prevention programs in the anti-crime law do not work, I will be first in line to change it. The 1994 crime law sets aside $5.4 billion to give States money--and flexibility--to implement many types of crime prevention programs that have proven track records of success. As part of that money, $30 million is allocated to fund crime prevention programs such as TRIAD and boys and girls clubs and other local initiatives. The TRIAD programs are the joint efforts of sheriffs, police chiefs and senior citizens--practical cooperation that helps combat crime against our elderly citizens. In hundreds of public housing projects across the country, boys and girls clubs give kids a safe place to hang out after school--a place with positive activities and positive role models. A recent, independent evaluation has reported that housing projects with clubs experience 13 percent fewer juvenile crimes, 22 percent less drug activity, and 25 percent less crack use, than do projects without clubs. [[Page S 18150]] Other local prevention programs are having great success as well. For example, in honolulu, professionals identify families at risk for neglect or abuse when children are born and then visit their homes regularly over several years to help parents learn to care for their children. In Houston, TX, a core of professionals provides one-on-one counseling, mentoring, tutoring, job training and crisis-intervention services to students at risk of dropping out. Although many communities are putting their best foot forward, the need and demand for prevention programs far outpace the supply. And yet the Republicans have eliminated the separately targeted funding for these programs and thrown them into the block grant--a move some charge is cold-hearted and mean. But I say it's just plain dumb. The prevention money in the crime law is an investment in our future that we simply cannot afford not to make--not when we are spending $25 billion to lock people up every year. And there are issues here even more important than money, because the commitment that we make today will define us as a nation tomorrow. Prisons, though essential, are a testament to failure: they are the right place for people gone wrong. On the other hand, when a life about to go wrong is set back on the right track--that is a testament to hope. We build hope by showing children that they matter, by challenging disaffection with affection and respect, and by contrasting the dead- end of violence with the opportunity for a constructive life. That's why we need to restore the separate funding for these prevention programs, in addition to the funding for the 100,000 cops program. Conclusion In concluding, I want to reiterate that in its breadth, the 1994 anticrime law reflects the lessons learned over the last decade as we studied crime and law enforcement and worked on passing this law. And in its approach, as well as in many specifics, the law was the result of bi-partisan efforts. We should not retreat now on this tough but smart crime package that already is hard at work in preventing violent crime across the country. And we should not retreat on the 100,000 cops program that we insisted on just a few months ago. Let me also point out that the $30 billion crime law trust fund that uses the savings from cutting 272,000 Federal bureaucrats (160,000 have already left) pays for every cop, every prison cell, every shelter for a battered woman and her children that is provided for in the crime law--without adding to the deficit or requiring new taxes. That was the deal we made right here on the Senate floor 1 year ago. Yet now my Republican colleagues are trying to back out on the deal by refusing to write the checks for next year's funding of the crime law. I have tried today to outline my objections to the Republicans retreat--in this conference report--on the key provisions of the anticrime law enacted last year. So I urge my colleagues to consider very carefully whether this is the right forum and the right idea to dismantle these vital parts of the already successful and highly popular crime law. In the end, I suspect that the merits will speak for themselves and the american people will decide whether it is a good idea to debilitate the Crime Law just as it is showing clear signs of success. This program is a very bad idea. I expect we are going to get to debate this again. So in light of that, and in light of the fact I have no more time--I am sorry. My staff is now fired. They gave me a note saying before I had 3 minutes, and now I see it is 30 minutes. But I will yield the floor and reserve the remainder of my time. Cops on the Beat/Community Oriented Policing Program

Mr. BIDEN

Mr. BIDEN. Mr. President, parliamentary inquiry. I wish to speak in [[Page S 18068]] opposition to this bill. Is there time for me to do that? And under whose control is the time?

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

Mr. BIDEN. I thank the Chair very much. Mr. President, this bill, in my view, retreats from the commitment we made to families with children. In 1988, Congress said that America's housing providers should not be able to discriminate against families with children. We did this in the face of widespread evidence that such discrimination against families with children existed. We spent a lot of time on this floor--and I participated and have for the years I have been here--talking about discrimination against minorities, talking about discrimination against the elderly, talking about all forms of discrimination, as we should, as we should. But in my view, we spent precious little time on this floor talking about what is a mounting form of discrimination, discrimination against children, because some people find them inconvenient, inconvenient to be around. In 1988, Congress said that America's housing providers should not be able to discriminate against children as well as against blacks or Hispanics or people based on their religion or based on their gender. We took this action because we wanted to prohibit all-adult housing communities just as we had prohibited all-white housing communities in 1968 with the passage of the Fair Housing Act in the first place. Even as we said no discriminating against families, we also carved out an exception for legitimate retirement communities which catered to the special needs--not just desires, needs--and requirements of the elderly. The distinction we made then, and which I stand by now, is this: You cannot just keep children out because you do not like them, you cannot just keep children out because you do not want tricycles around, you cannot just keep children out and families with children out because it is inconvenient and you do not like it. If you are going to exclude children, we said, you must be an organized community providing ``significant facilities and services'' designed to meet the physical and social needs of the elderly. Or put another way, a lot of old folks like me--I am 53 now--get together and say, ``We're tired of having kids around and we're going to have this gated community that X percent of us are over the age of 50, and we can prevent someone from moving in who has kids.'' Well, I tell you what, I think that--and by the way, there was ample evidence in the hearings we held then that that is just what was being done. What we were not concerned about is a community for the elderly with special needs where they needed ramps, where they needed special dining facilities, where there was some type of extended care, where it was in fact designed for elderly persons who in fact physically needed this special circumstance or emotionally needed this special circumstance, but not just because all of a sudden we have become trendy and decided that kids are kind of in the way. If we are going to exclude children, we said, you have to be an organized community providing significant facilities and services. This ``significant facilities and service'' requirement was put into law for, as I have said, a very good reason, put there to distinguish between true senior communities and those that just think children are a pain in the neck. We recognized that something other than an animus against children must set these communities apart in order to meet an exemption from the Fair Housing Act. I understand that what constitutes significant facilities and services has been a matter of a great deal of controversy and uncertainty over the years, and I have not been satisfied, because I have not believed that we set down stringent enough requirements to exclude--exclude--families with children. Heck, there are communities who let dogs in, let people have dogs, but will not let people have children. And so, significant facilities and services, as I indicated, have been a matter of much controversy. Also understand, the Department of Housing and Urban Development has taken many different stabs at the definition which has led to confusion and has made it difficult for those trying to comply with the law. Mr. President, none of that, in my view, should lead us to abandon the basic principle: If you are going to be able to discriminate against families, you should be special, you should be serving the special needs of seniors. This principle should remain our guidepost more now than ever, especially since the Department of Housing and Urban Development has just recently promulgated completely revised regulations which resolve the confusion and make it much easier and clearer for senior housing communities to take advantage of the exemption. The Department, many now agree, has finally gotten it right. Under the new regulations, which went into effect September 18 of this year, a housing facility can self-certify. It is amazing, we do not let many other folks self-certify that it falls under the Fair Housing Act exemption by simply filling out a straightforward, easy-to-understand checklist of facilities and services designed for older folks, which, I add, I do think is too lenient, not too strong. My staff does not like me to say that, but that is what I think. I think it should be more stringent, if you are a senior community meeting the exemption. But the checklist contains a menu of some 114 facilities and services in 11 categories. If a facility provides a mere 10 of them, like wheelchair accessibility, communal recreation facilities, periodic vision or hearing tests or fellowship meetings, it qualifies as a senior housing project and may exclude families with children. I want to make it clear to seniors who are not happy with me about this, I do not even think that is stringent enough, but at least it attempts to make the distinction. If a facility's status is challenged, it need only show that the certification was accurate at the time of the alleged violation. The list of facilities and services included in the new rule was drawn from amenities actually provided by a wide cross-section of senior housing developments across the country, large and small, affluent and less well off, manufactured housing communities, condominiums and single- family communities. In testimony before Senator Brown's subcommittee, a representative from the Department of Housing and Urban Development testified to the extreme flexibility and cost consciousness built into the new guidelines. Here is what he said, and I quote: The rule does not assume that people living in housing for older persons are frail, disabled or require nursing home care. It does not require congregate dining or on-site medical care. The facility and services may be provided on or off the premises of the housing. Let me add, I think it should require those things. But they may be provided by staff, volunteers, including residents and neighbors, or by third parties, such as civic groups or existing organizations in the community. The new regulation does not require lavish services, nor do the mandated facilities, affordable only by the well-heeled; rather, they simply embody what is already being offered by bona fide senior communities of all sorts across the map. If a facility is providing at least 10 of the 114 facilities or services on the list, it qualifies for an exemption, a self-designated exemption. The bill's supporters say the bill will make it easier and surer for a housing community to determine whether it qualifies for a fair housing exemption, and they are absolutely right about that. It makes it a lot easier. They do not have to be a senior facility. They can just not like kids. They can just not like kids around. What kind of message are we sending to families with children, most of whom are breaking their necks just making it? What are we saying? We want to make it easier for you to have a rationale to keep me out of that community with my 14-year-old daughter? I think it is outrageous--I acknowledge, I am the only one who seems upset about this; no one else is here to speak against it, that I am aware of--unless they want to make it even easier and just say it is not in vogue to have kids: ``If you have kids, go off and [[Page S 18069]] live by yourself.'' The other folks should go off and live by themselves, and if the kids want to follow, so be it. Think about it for a minute. Let us say that a complex contains 100 units; that all of these are occupied by two people; and that 80 percent are occupied by at least one person over the age of 55. In this hypothetical community, it will be able to lawfully discriminate against families with children under this bill if as few as 80 residents of the 200 of them are over the age of 55, while 120 could be under the age of 55, and we could put up a sign: ``No children allowed.'' They probably all call themselves great Americans, too, by the way. They all talk about how they care about families, and they may even go visit their grandchildren and pat them on the head on their birthdays and Christmas. What does that say, if you can build a community where 80 out of 200 people living in the community are over 55 and you can say ``no kids''? If we want population control, this may be one of the indirect ways of going at it. To my mind, the math just does not add up to fairness for families and children. I believe this bill will open the door to the very kind of discrimination we sought to outlaw in 1988, and I think it will make it just too easy for folks to hang a sign on the door that just says, ``No children allowed.'' I cannot support this bill. I urge my colleagues not to support this bill. I realize that I am going to hear an awful lot from senior citizens about their rights. I do not think there is anybody on this floor who votes to protect the rights of seniors any more than I do, but no senior, unless they have a physical or emotional problem and need, has a right to tell a kid they cannot live next door. It is just too darn bad, and we are allowing it here. I might add--well, I will not add anything else, because I will just get myself in trouble if I keep thinking about it and keep talking about it. I do not think this is the right thing to do. I am sure to most, because we are so busy, this is just a clarification of an existing piece of legislation. That is how it is advertised. I respect my colleague from Colorado. He is joined in support for this by many of the strongest allies in the area of civil rights, many of the colleagues on this floor, my colleagues who I tried rally a little bit about this. They seem to think I am kind of off. One of them even said, ``Biden, that's because you come from a big Catholic family, you keep talking about the size of families.'' I do not like people who discriminate against kids. Period. I think it is well-intended what is being done here, but I want to tell you, if you are 55 years old, ambulatory, still working, have no problem, live at home, have a wife or have a husband, you are hanging around the house, and you are fine and you do not have any special needs, you should not be able to say a kid cannot move next door to you. Period. Period. I just think this is wrong. I think it is dead wrong. But I am going to lose. I just want to make sure when my children and grandchildren read this, they will know their old man and their grandfather meant what he said. The only important thing--the only important thing--in this whole outfit is kids. That is the only important thing. All the rest is insignificant. And when we allow people to say, ``No kids here,'' it is like we say, ``No dogs here,'' it is like we say, ``No blacks here.'' That is just wrong, unless there is a real good and compelling reason for it. The fact you are over 55 and 80 out of 200 people in a community over 55, that ``ain't'' good enough for me. I yield the floor.

Mr. BIDEN

Mr. BIDEN. Mr. President, I rise today to oppose, in the strongest terms possible, H.R. 1058--inappropriately titled the ``Private Securities Litigation Reform Act of 1995.'' This bill has nothing to do with reform in the normal sense of the term. Rather, the bill is about protection from liability for fraud--pure and simple. The bill is the worst kind of special interest legislation that the American public is sick and tired of. It will give corporations a license to lie to investors and will severely restrict the ability of defrauded investors to recover their hard-earned dollars from the unscrupulous and reckless individuals and corporations who swindled them. Six months ago, I stood on the Senate floor and urged my colleagues to oppose this bill in its earlier incarnation because--put simply--it was a bad bill. Because it was a bad bill, every major consumer group, State attorneys general, State and county treasurers, mayors, finance officers, labor unions, the American Association of Retired Persons, the National League of Cities, educators, and hundreds of other nations, State, and local organizations, opposed the bill. It is easy to understand why when you consider that a city like San Francisco has over $8 billion in pension funds and other investments and when more than 60 State and local governments nationwide have lost more than $3.6 billion in securities markets, partly due to derivative investments. Despite the tremendous opposition to H.R. 1058, which was a bad bill in June, it is a worse bill now. Therefore, I strongly urge my colleagues to oppose it. What is most disturbing about this bill is the impact that it will have on what are often the forgotten Americans--that is, average middle-class Americans. At a time when job and wage insecurity are at all-time highs, and family budgets are straining at the seams, middle-class Americans have begun investing their hard-earned dollars in stocks in record numbers. In fact, as the Washington Post reported just a few days ago, securities have supplanted real estate as the No. 1 source of family nest eggs. Middle-class Americans believe they must invest because there may not be a decent pension when they retire--either they will be let go too soon because of corporate down-sizing or their company, to which they have been loyal, will not be there 20 or 30, or even 10 years from now. Middle-class Americans also want to invest for the future because they aren't sure that Social Security or Medicare will be there for them in their later years when they are most vulnerable. Last, middle-class Americans believe they must invest to ensure that their children are able to receive an education that provides them with the essential skills to enable them to become productive and integral participants in what will be an extremely competitive and global work force in the 21st century. Because middle-class Americans recognize the need to secure and protect their financial futures, they have entered to stock market directly--or through mutual funds--to such a degree that the most significant asset held by American families today is not their home, but their 401(k) plan. Today, assets in 401(k) plans total more than $500 billion. Assets in investment retirement accounts total more than $1 trillion. The majority of these funds are in stocks. Under these circumstances, this Nation's two primary securities laws--the Securities Act of 1933 and the Securities and Exchange Act of 1934--have become even more, not less, important. The principal philosophy governing these two laws--enacted more than 60 years ago after the stock market crash of 1929, caused largely by a crisis of confidence due to unregulated fraudulent stock promotion--is that investors and prospective investors should have access to all material information about corporations that offer securities so that the public can make informed investment decisions and that honest markets should be maintained by strong antifraud enforcement. At a time when middle-class Americans are investing in record numbers because they believe they must, the U.S. Congress should be strengthening the most fundamental protections for investors in our securities laws, not gutting them. Yet, gutting these laws is exactly what this bill does. This bill strikes a severe blow to the heart of the middle class. Let me tell you about just a few of the devastating provisions in this bill. One of the most outrageous provisions in this bill is the safe harbor provision. This provision, by providing broad immunity from liability for fraudulent corporate predictions and projections, essentially gives corporations a license to lie. This provision is much worse than the safe harbor provision in the Senate bill. [[Page S 17992]] The Senate bill language that made knowingly fraudulent defendants ineligible for the safe harbor was eliminated. Now, under this bill, deliberately fraudulent statements, written or oral, as long as they are accompanied by cautionary language, will be immunized from private liability. Let me repeat--this bill protects deliberately fraudulent statements. Let me give you a frightening but likely scenario that could occur under the safe harbor provision in this bill: In an effort to entice unsuspecting consumers to purchase stock, company X makes a bunch of optimistic and fraudulent predictions about how great a new product will perform and how the company's profits will increase because of the manufacture of this new product. The company gets its lawyers and accountants to vouch for the representations. Based on these rosy predictions, your uncle, your grandmother, your sister's teacher's union, your church, and the State of California decide to purchase the stock. All of them wind up losing their money when the fraud is exposed. Your grandmother believes the company should not be able to get away with lying to her. The company's lawyers argue, however, that even though there were fraudulent statements, there was a paragraph of cautionary language in some filing at the Securities and Exchange Commission. Under this bill, grandma loses, all the swindled investors lose, and the fraudulent company and its lawyers and accountants win. This is absolutely outrageous. And it's just one example of the many anti-investor provisions in this bill. To add insult to injury, this bill also fails to restore traditional aiding and abetting liability for securities fraud in private actions. Thus, lawyers, accountants, and others who turn a blind eye to the fraudulent activity of their clients, or who recklessly aid and abet their clients, will be let off scott free. The bill also dramatically erodes the doctrine of joint and several liability and moves to a system of proportionate liability. The bottom line for an investor is that under this bill, if a corporate defendant is found guilty of fraud and goes bankrupt, the victim will not be able to recover all of his losses. In essence, what this bill does is determine, as policy matter, that it is more important to protect adjudged wrongdoers from having to pay more than their strict proportion of the harm than it is to protect the innocent victims of fraud. Another of the troubling provisions in this bill, is the one which adopts a higher pleading standard than was in the Senate bill--higher in fact than the standard adopted by the second circuit--which is currently the highest standard in the land. As my colleague Senator Specter discussed earlier, it was Senator Specter who offered an amendment that clarified that the heightened pleading standard in the Senate bill could be satisfied by evidence of a defendant's motive and opportunity to commit securities fraud. The current version of this bill, however, eliminates the language in the Specter amendment. This bill is also worse than the Senate bill because it imposes a mandatory loser-pays fee shifting penalty under rule 11 of the Federal Rules of Civil Procedure that is harsher on plaintiffs than on defendants. Under current law, rule 11 gives courts the discretion to impose sanctions for pleadings and motions that are unwarranted, without evidentiary support, or otherwise abusive. The Senate bill required courts to determine whether any party violated rule 11 and to presume that the appropriate penalty for violating rule 11 is fee shifting. Under the Senate bill, the party who violated rule 11 would have to pay the opposing party's legal fees incurred as a direct result of the violation. The bill on the floor today is worse than the Senate bill because it unfairly increased the penalty imposed against plaintiffs who are found to have violated rule 11 while not doing so for defendants who are found to have violated rule 11. The presumptive penalty for plaintiffs is have to pay all of the defendant's legal fees and costs incurred in the entire action. Proponents of this bill claim that the bill is balanced and fair. Is this provision balanced or fair? Not by any stretch of the imagination. This bill, unlike the Senate bill, also adopts a provision, modeled on the House bill, that may require plaintiffs to post a bond to cover a possible fee-shifting penalty. Moreover, there is no limitation on the amount of the bond. This could be a major obstacle for individual victims or their attorneys in bringing a meritorious action against a large corporation defendant. The bill also fails to restore an adequate statute of limitations for private securities fraud actions, and gives the greatest control in cases to the wealthiest plaintiffs. Lastly, as someone who has long sought to do what he could to combat crimes of all kind, I also find it incredible that language in the Senate bill concerning the application of our RICO laws in securities fraud cases has been almost eliminated entirely. Under an amendment I offered, the Senate bill allowed the RICO statute to be used in a securities fraud civil case if at least one person in the civil case has been criminally convicted. Under this bill, RICO could only be used in the civil case against the person who was actually criminally convicted. The safe harbor, proportionate liability, pleading, aiding and abetting, fee-shifting, and RICO provisions, are bad enough alone, but together, they will actually encourage the kind of conduct our securities laws were designed to eliminate. I am sure that there is not one Member in this body who does not want to bring an end to all frivolous lawsuits, not just shareholder lawsuits. Yet, the legislation before us today is not the answer--it is far from it. Indeed, the managing editor of Money magazine, the largest financial publication in the United States, with over 10 million, largely middle- class readers, said it well when he stated, and I quote: At a time when massive securities fraud has become one of this country's growth industries, this law would cheat victims out of whatever chance they may have of getting their money back . . . in the final analysis, this legislation . . . would actually be a grand slam for the sleaziest element of the financial industry, at the expense of ordinary citizens. The president of the Fraternal Order of Police said it best, however, when, in his letter to the President urging him to veto the bill, he stated: Mr. President, our 270,000 members stand with you in your commitment to a war on crime; the men and women of the Fraternal Order of Police are the foot soldiers in the war. On their behalf, I urge you to reject a bill which would make it less risky for white collar criminals to steal from police pension funds while the police are risking their lives against violent criminals! I urge my colleagues to heed these words.