Joe Biden

Mr. BIDEN

Mr. BIDEN. Madam President, I understand the unanimous consent order was that I was to be recognized next. My colleague from Maine has asked whether or not he might be able to go first. I ask unanimous consent that I be able to yield to him since he was next in line and then have my opportunity to speak when the Senator from Maine finishes.

Mr. BIDEN. Mr. President, the Senator from Virginia has just made a statement I could not propound in the form of a question. I thank him.

Mr. BIDEN. Madam President, maybe he will learn something.

Mr. BIDEN

Mr. BIDEN. Mr. President, on June 22, the superior court of my home State held a special session--special not only in the technical sense, but in spirit, in its purpose and its meaning. The court met, with all of its current judges and many of its distinguished alumni present, in appreciation of the services of Albert J. Stiftel. I am proud today, Mr. President, on behalf of many other of his fellow citizens, to offer another expression of appreciation for Albert Stiftel, who served on the Superior Court of the State of Delaware from 1958 to 1990, including 24 years as presiding judge. The quality and character of Judge Stiftel's service merit not only our attention and appreciation, but also, if we are up to the challenge, our best attempt at emulation. My colleagues have indulged me before--indeed, some have joined me, in praising the tradition of excellence that has made Delaware's judiciary a standard for the Nation. It is a tradition of excellence not only in the administration and dispensation of justice, but in principled as well as practical bipartisanship, in fun as well as functional collegiality, and in that often neglected cornerstone of democratic society, civility. Mr. President, Albert Stiftel embodies that tradition. Albert, as he is by choice most widely known, is pure Delaware: born and raised in Wilmington--raised, in fact, in the house where he still lives--a graduate of Wilmington High School and of the University of Delaware. He entered law school at the University of Virginia in 1939, an undertaking interrupted when he was called to duty as a second lieutenant in the U.S. Army. As his lifelong friend and longtime colleague on the Delaware bench, retired State Supreme Court Justice William Duffy, remarked, ``Albert was born in Wilmington but, like many of his generation, he grew up in the South Pacific, including a place called Guadalcanal.'' After his military service, Major Stiftel returned to the University of Virginia Law School, graduating in 1947. Young Albert Stiftel's years of private practice were driven by a public spirit. Before becoming a judge, he was an attorney for the Legal Aid Society, attorney for the Delaware State House of Representatives, and a Deputy Attorney General. And he was also a teacher, a role he wears naturally and with grace. In 1958, my distinguished predecessor in this body, then-Gov. J. Caleb Boggs, a Republican, appointed Albert to the superior court. In 1966, he was appointed as the court's presiding judge by Democratic Gov. Charles Terry, and he was subsequently reappointed by a Republican Governor, our former colleague in the other Chamber, Pete du Pont. During his long tenure, Judge Stiftel confronted the challenge of times, both for the community and for the court, that he himself has described as ``change and more change.'' Through it all, his leadership won ever-deepening respect. In acknowledging his debt to his predecessor, the current presiding judge of superior court, Henry du Pont Ridgely, thanked Judge Stiftel for an example that taught ``the importance of comradeship and demonstrated the work ethic you expect from others, of being even- handed and setting high standards, under-promising, over-delivering, and sharing the credit.'' Lessons we would all do well to learn. But despite the universal relevance of his example, Judge Stiftel's impact on the court, and on all who have known him, has been distinctly personal. Another longtime Delaware judicial colleague, now-Vice Chancellor Bernard Balick, put it this way: ``All of us are unique, but Albert is more unique than most.'' Albert Stiftel's defining qualities, as a judge and as a person, are humility, kindness, and compassion. In and beyond superior court, he has been truly the best of teachers and the best of friends--welcoming, helpful, encouraging to all. I am told that the superior court's ``Judge Stiftel Award'' is reserved for that employee who does the most to brighten the lives of his or her colleagues. It is aptly named. As Justice Duffy put it, ``Other judges may have served longer, but I doubt it, or have more entries in Lexis, perhaps, and a few may have been better administrators--but none has been held in higher personal esteem than Albert Stiftel.'' Mr. President, I left one quality off the list of Judge Stiftel's defining characteristics, and it will be a glaring omission to anyone who knows him. And in fact, the reason I left it out is that I wanted to call individual attention to it. ``It'' is His Honor's sense of humor. Let there be no doubt that Judge Stiftel's commitment to fairness is passionate and sure, but its expression has often been punctuated by a one-liner. Vice Chancellor Balick told this story at the June 22 special session: ``There was the time when Albert was presiding in a criminal trial, and the defendant was on the witness stand, exercising his right to lie in his own defense. Albert was fooling with the microphone, as he always does. He turned the volume up, which caused a loud screech. That startled the defendant, at which Albert said, `Relax, it's just the lie detector'.'' Whether conveyed in wit or wisdom--and usually it is with both--Judge Stiftel's regard for his colleagues and for the court on which he served has been unwavering and inspiring. As Resident Judge Vincent Bifferato said, ``He taught me to love this court as he does.'' And Judge William Quillen said of Judge Stiftel, ``He has been a cheerleader, not only for the court but for each member of the court * * * he has made each of us better than we otherwise would have been.'' At the special court session, Judge Quillen presented a portrait of Judge Stiftel, which will hang in what was known as courtroom No. 1 when Albert was first appointed to the bench. The portrait was commissioned not by the court, not by the State, not by the Bar Association, but personally by the judges, past and present, of the superior court. This public tribute is all the more official coming as it does out of the sincere affection, respect, and gratitude of Judge Stiftel's colleagues. That affection, respect, and gratitude are felt throughout and beyond Delaware's legal community, Mr. President, and it is my privilege to give voice to them today. We in Delaware honor Judge Albert Stiftel for the achievements and contributions of his public leadership and for his countless acts of personal kindness and courtesy. He leaves good will and good humor, as well as high standards, in his refreshing wake. It is most appropriate that in the portrait that will now be a permanent physical presence, as its subject is a permanent spiritual presence, in Delaware's Superior Court, Albert Stiftel is doing what he has inspired so many others to do--he is smiling.

Mr. BIDEN

Mr. BIDEN. Mr. President, I rise today to speak to the subject that Senator Pell just addressed. My colleagues are probably tired of my rising and speaking to this subject over the last 3 years. I have been arguing for some time and continue to contend that we need to lift what is, in fact, an illegal as well as immoral arms embargo against the Government of Bosnia-Herzegovina. Mr. President, observers in the Senate know full well that I am no stranger to this issue. Nearly 3 years ago, on September 30, 1992, I spoke out against the arms embargo on Bosnia after returning from Sarajevo, Tuzla, Belgrade, and various places in Croatia--in short, from having traveled Bosnia, Serbia, and Croatia fairly extensively and observing what was going on. I came back and wrote a report, which I delivered to the President and to the Secretary of State, and spoke on the floor of the Senate and to the Foreign Relations Committee. I recommended a policy that came to be referred to as lift and strike and said that the arms embargo was illegal as well as immoral. After speaking out against the embargo, I introduced the so-called Biden amendment, which was subsequently adopted by the U.S. Senate during the waning months of the Bush Presidency. The Biden amendment, I would like to remind everyone, is law now. The Biden amendment authorized assistance to Bosnia and Herzegovina through a drawdown of up to $50 million in Defense Department stocks of military weapons and equipment. As I said, it passed. It became law. It gave the President the discretion when to draw down this weaponry. But we heard then from many people who are now suggesting we should lift the embargo as well as all those who are against it that this weaponry would be of little value to the Bosnian Government and their army, which then as now was made up of Serbs, Croats, and Moslems. Nearly everyone forgets, incidentally, that when hostilities started only perhaps 60 percent of the Serbs in Bosnia, who made up only a portion of the population of Bosnia, were engaged in or supported this vile ethnic cleansing. To return to the issue of arms, I was told then--incorrectly--that these Bosnian Moslems, Serbs, and Croats who supported the multiethnic Bosnian Government would not be able to use these weapons. Supposedly they had to be trained by Americans and other Westerners. I reminded people then and I remind people now who will raise the same argument that every young Bosnian Moslem, every young Bosnian Croat, every young Bosnian Serb male was conscripted into the Yugoslav Army, trained in the Yugoslav army, and became fully capable of using the weaponry we would send their way. Mr. President, less than a week after we passed the Biden amendment, on [[Page S 10293]] October 5, 1992, I made the following statement. Surely the greatest single step the U.N. could take to increase the impact on sanctions on Serbia is to leave the embargo against Serbia in place while lifting the embargo against Bosnia and Herzegovina--an embargo that, however well intentioned-- I might note parenthetically here, I may have been too generous in that remark-- has had the undeniable effect of freezing the people of that country in a state of utter defenselessness. That was true on October 5, 1992, and now it is clear to the whole world. Since that time I have spoken regularly here on the floor of the Senate and elsewhere against the arms embargo on Bosnia, which flies in the face of article 51 of the U.N. Charter, an article that gives every member state the right to self-defense. While we have prevented heavy weapons from reaching the victims of aggression, we have not prevented the shells from heavy weapons in the hands of the Bosnian Serb aggressors from reaching the victims of aggression. The Bosnian Serb aggressors have been lavishly supplied with tanks, artillery, planes, and even troops by Serbian strongman Milosevic. Mr. President, I mentioned my long record of public opposition to this illegal and totally immoral embargo only to remind my colleagues, first, that the embargo has been strangling an innocent victim for years. This is not new. It is just increasingly more dire. Second, that the issue has been before this House for just as long, and each time we have opted not to act decisively, preferring to give diplomacy one more chance. If one more of my colleagues, as much as I respect them, comes up to me on the floor, as several of my Democratic and one of my Republican friends recently have, and says privately, ``Joe, why don't we give diplomacy one more chance?'' my answer will be, because I do not want to be a party to a delay that I know is going to result, while we are acting diplomatically, in the corralling of young Bosnian women into rape camps, in the siphoning off of young boys and men into death camps, and in the expulsion of old men and old women from their home areas by the repulsive practice whose grotesque euphemism is ethnic cleansing. Not one single time, not once since September 30, 1992, has any delay resulted in anything other than the death, destruction, humiliation, and genocide of the people of Bosnia. I bring up this history not in the vein of, ``I told you so,'' but to remind everybody how long this has been going on and to caution my colleagues not to listen to the siren song of inaction one more time. You can convince me once, maybe, not to act; twice; maybe three times, but 7, 8, 9, 10 times? I challenge anyone in this body to give me one shred of evidence that any delay in lifting the embargo has in any way--in any way--enhanced the prospect that fewer women in Bosnia will be raped, that fewer young girls will be raped, that fewer men will be exterminated, and that fewer older people will be expelled from the areas in which their families have lived for centuries. One shred of evidence. I challenge any of my colleagues to come to the floor now or at any time at their convenience and debate that issue with me. So wait, wait for what? The third reason I bring up the history on this, is that the President of the United States of America has been and is still authorized to provide $50 million worth of military assistance to Bosnia. This is authorized without any further congressional action required, to be delivered as soon as we take the step of lifting the embargo. This step has never been more acutely necessary than it is now, Mr. President. Since the Bosnian Serb aggressors brazenly defied the United Nations, in a sense the entire civilized world, by overrunning the U.N. safe area in Srebrenica last week, we have now had the whole world see what I saw and other folks saw firsthand the last time an enclave was overrun, as people were driven into Tuzla as I stood there. I was meeting with the aid relief workers, and there was a great commotion. Everyone got up out of the makeshift meeting room we were in because great big, old, white dump trucks were coming into Tuzla filled with men and women, holding their young children over their heads and outside the dump truck. There was an air of relief and celebration, and those of us watching thought this holding up their children was part of the celebration. We were, however, to find out as they unloaded this dump truck filled with human beings that the reason they were holding up their children was because other children had been trampled underfoot and smothered to death on the last trip from ethnically cleansed territory into the safe area of Tuzla. Then the United Nations and the contact group--Russians, French, British, Germans, Americans--said, ``Tell you what we're going to do. Through the United Nations, we're going to lay out certain safe areas,'' which they listed. I remind everybody what the deal was in the safe areas. The deal was that if the Bosnian Government--primarily Moslems, but also some Croats and Serbs who supported the Government--if they would give up what few weapons they had left in Gorazde and Zepa and Tuzla and Srebrenica, then we, the United Nations, speaking for the world, would guarantee that we would keep the Huns away from the door. We would guarantee that the ethnic cleansing would stop, and we would negotiate. So then they gave up their weapons and, as John McCain and I mentioned last week on the floor, all one had to do was hold up any newspaper in America and see--and I am not being critical of the troops that are there personally--blue-helmeted and blue-bereted soldiers sitting on armored personnel carriers, sitting on tanks and sitting in trucks, watching as the Bosnian Serbs went in and, before their very eyes, cleansed, in the same way that the Nazis cleansed when they dropped off folks at the Auschwitz train station in cattle cars. They found an interesting thing as they observed this vile ethnic cleansing. All the young women and all the young girls were sent off in one direction. The men who were fighting were not seen anywhere. The old folks were loaded into trucks with the very young children. And armed military personnel sat there, representing the world--they sat there while the Bosnian Serbs, before the very eyes of all the world, culled out these folks as if they were cattle. Then, we were told that if we lifted the arms embargo, do you know what was going to happen? The Bosnian Serbs might really get mad and overrun the safe areas. Mr. President, being as calm as I can about this, let me remind everyone that safe areas have already been overrun. I plead with some of my colleagues not to come to the floor and tell me what you have been telling me for 2 years--that if we lift the embargo, the Bosnian Serbs will overrun the safe areas. They have already done it in Srebrenica, and they are going to do it very soon in Zepa; they are in the process of overrunning it right now. I spoke with the Bosnian Foreign Minister, and indirectly through him to the Prime Minister, only 2 hours ago. The world has a perverse notion of how to deal with this. The Bosnian Government forces have taken into their protective custody the U.N. protectors of Zepa because of what is going to happen if they do not. If they do not, the Serbs will take the U.N. troops and threaten to kill them. Unless the people in Zepa throw down what few arms they have been able to find, unless they get into trucks, go to rape camps and go to death camps, the Bosnian Serbs are going to kill some of those U.N. blue helmet peacekeepers. But how is this being portrayed by the Mr. Akashi of the United Nations? He says that the Bosnian Government is no different from the Bosnian Serbs; they are both holding hostage blue-helmeted U.N. peacekeepers. What the Bosnian Government forces know, however, is that if they do not prevent those blue-helmeted peacekeepers from coming under the control of the Bosnian Serbs, they are dead. Mr. Akashi's fallacious moral equivalency is just another example of the twisted logic, the overwhelming rationalization the United Nations and others will undertake to avoid facing the truth of international inaction. Genocide. Genocide. Genocide. That is what this is about. Many of these brutalized Moslems, as we have been reading in the paper, as a consequence of having been raped or otherwise tortured, have committed suicide. When is the last time we read about that in this [[Page S 10294]] century? It is not Joe Biden's judgment. World news organizations are reporting this now. These war crimes and crimes against humanity are no longer deeds known only by the specialists. They are there for all the world to see. These unspeakable deeds would be horrific enough if the government of those unfortunate people, the Bosnian Government, had been unwilling to defend them. But, Mr. President, the story is far worse than that. The Government of Bosnia has shown for more than 3 years that its young Moslems, young Croats, and young Serbs, are willing to fight against a foe with vastly superior weaponry, and to die defending their homes, their wives, their mothers, and their sisters. And what have we done? We have forbidden them to get the arms necessary to defend themselves. Instead, we have opted for the cruel deception of alleging that the U.N. Protection Force would defend them. Well, that has been laid to rest, Mr. President, as an outright fabrication. Mr. President, after the last few days, even the most naive American cannot hear those words--and I repeat--the U.N. Protection Force-- without being sickened by its Orwellian name. Mr. President, we have to put an end to this madness. We have temporized for far too long. The so-called U.N. Protection Force has abdicated its responsibility to the people it had pledged to defend, and the contact group's diplomacy is at a dead end. I might add that former Secretary of State, Henry Kissinger, is right that this U.N. Protection Force is not to blame; it has been the excuse. Many of those folks in the protection force are brave and decent and, from my personally meeting with them on two occasions in Bosnia--last year in June, and in September 1992--I know that they are repulsed by this, as well. But, Mr. President, their mandate is not to get involved. For that, I blame the West--not the United Nations, but the West. Mr. President, the least the United States can do is to allow the victims of oppression to defend themselves. We must lift this illegal, immoral arms embargo now. As an original cosponsor of the Dole- Lieberman legislation, and of previous legislation, I strongly urge my colleagues to support S. 21. Mr. President, I might add that in order to get more votes --and I do not say that critically--Senators Dole and Lieberman have apparently already decided to amend the legislation to allow the President the right to postpone lifting the embargo for 30 days at a crack if he believes that the safe and secure completion of the U.N. personnel would otherwise be endangered. I understand the intention of this waiver. But I respectfully suggest, Mr. President, that this waiver will only invite the rabid minority of Bosnian Serbs led by Karadzic and General Mladic and his genocidal troops to go after the U.N. forces as they withdraw, or American forces if they are moved in to help them withdraw. In conclusion, Mr. President, I say that we have made a botch of our policy in the former Yugoslavia in two successive administrations. President Bush started this awful policy off. He handed it off to President Clinton, and, unfortunately, in my view, this administration has not reacted because of the need to find NATO unity. But there is no unity on this, Mr. President. We should get on the right side of history. We should get on the side that makes the most sense. We should get on the side of morality. I might add, Mr. President, that there is no need for any American forces in order to lift the embargo. The Moslems have a right to be able to defend themselves. I will end with a quote from the Prime Minister of Bosnia, who, 2 years ago, was Foreign Minister. I have said this to my colleagues before, but I want to remind them, and maybe even awaken their consciences a little bit. I held a meeting in my conference room and invited about a dozen Senators of both parties. The then Foreign Minister, now Prime Minister Haris Silajdzic--all of you have met him by now, I suspect--was there. When I made the case for lifting the arms embargo and using air power to protect peacekeepers and others while they moved, one of my colleagues said, ``I do not want to do that because more death will result. If the U.N. force leaves, more of your people will die.'' This Senator was very sincere, because that was the wisdom of the moment. Silajdzic looked at this Senator, for whom I have a great deal of respect, and said, ``Senator, please, do me a favor. Allow me the dignity to choose how I will die. Senator, all the UNPROFOR does for us now is to fatten up my wife, my children, my countrymen, and me to be killed incrementally over the winter and the next spring and the summer. I would rather not have the food and have a weapon. Let me choose how I am going to die. For certain, I will die.'' Mr. President, that was not a comment of a man engaging in hyperbole. It is a man who puts his life on the line every day. His predecessor said the same thing. Please, when this legislation comes up, please, we should get on the right side of history and morality and lift the arms embargo that is putting the Bosnian Government in a position where they cannot defend themselves. I yield the floor. Mr. EXON addressed the Chair.

Mr. BIDEN

Mr. BIDEN. Mr. President, I want to reform our regulatory process. No one can deny that we need to write smarter, clearer, more effective, and more flexible Federal regulations. The question before us is not whether to reform our regulations. The question is how to reform them. I believe that the most balanced answer to this question is in S. 1001, that Senators Glenn, Chafee, and I, along with other of our colleagues from both sides of the aisle, offer here today. And I am afraid that S. 343, the Dole-Johnston bill, remains an unbalanced, costly, confrontational approach, that fails to meet its own reform criteria, and that will fail to protect the public health and safety--the general welfare that it is our Constitutional duty to protect. Mr. President, the days are long gone when Americans grew their own food, made their own tools, stayed pretty close to home, and saw most disease as an act of God. Now we buy food from all over the world, packaged and processed with unpronounceable chemicals, even irradiation. We travel at higher speeds over longer distances, in larger and larger aircraft, and in automobiles that are as much electronic as they are mechanical. Mr. President, as much as we may long for a simpler, more self- sufficient time, we must face the costs--in new risks to our health and safety--that come with the benefits of our rapidly evolving economy. It is one thing to recognize those costs, Mr. President, and quite another to know what to do about them. What is the best way to protect against the new threats to our safety and health that come from the way we now live? That is the heart of the question before us in this debate on regulatory reform. Mr. President, the issue before us today has been a generation in the making. Many of the safety and health regulations now on the books had their origins 25 to 30 years ago, when we began to face up to the real costs--in injury, disease, and even death--from unregulated manufacturing processes and products. By the end of the 1960's and the beginning of the 1970's, we came to realize that consumer choice alone--the guiding principle of the free market--was not enough to protect us from poorly designed, inadequately researched, or criminally negligent products and processes. Our private enterprise economy functions so well because it is based on individual initiative and self-interest. Economic competition among free individuals drives the inventiveness that gives us new products, new technologies--progress that has given us the most powerful economy in the history of the world. But those competitive individuals all face the same need to keep their costs lower than their competitors--each individual must find ways to avoid paying for anything that competitors get for free. The unfortunate effect in this process is that what we all have in common--the need for clean water, clean air, clean food, safe working conditions, products that are safe and effective--those things we have in common are not necessarily protected in each business's calculations of economic efficiency. At the same time, with the rapid technological changes brought by our free enterprise economy, we find ourselves more and more dependent on products whose safety and effectiveness we cannot evaluate ourselves-- except, perhaps by experiencing the tragic consequences of thalidomide or DDT, or increasing automobile injuries and deaths. So we need some way to make sure we can take care of those things we have in common--the common good. A generation ago, the public began to demand cleaner air, safer food, water, and transportation. To accomplish those goals, Congress has passed laws, and agencies have written the regulations to put the goals of those laws into effect. In era of skepticism, cynicism, and downright hostility toward government, these are the most popular federal laws now on the books, Mr. President. Everywhere I travel in my own State of Delaware, and in other States around our country, people of every political persuasion tell that they continue to support government policies that keep our food and water safe and clean, that assure we can travel in safety, and that protect the environment. At the same time, these are also some of the most frustrating, demanding, confusing regulations that our small businesses and property owners must face. Reform must balance the demands of the public for continued safety with the needs of those businessmen and women who seek reasonable relief. Still, taken as a whole, in terms of their impact on the economy, these regulations are not, Mr. President, the unmitigated disaster some would have us believe. Our food, our water, our prescription drugs, our highways and airways--even our children's clothes and toys--are safer today because of Federal regulations. But at what cost, ask our colleagues? They tell us that our country is being strangled by regulations, jobs are being lost, that the burden of regulations is sinking our economy. Now, Mr. President, a couple of days ago on the floor of the Senate I related a story from my own State of Delaware about regulations run amok, about a rule that flies in the face of common sense, a rule that cost a good friend of mine an outrageous amount of money simply to settle a claim out of court. I know as well as anyone here that these horror stories are real, and that it is high time we undertook serious reform of the ways we write Federal rules and regulations. But our job here is to weigh the full body of evidence, and to put the individual cases that are so frustrating and infuriating into context, and correct them individually. When I told that story, I said I would return to the floor to discuss the real cost of regulations, the real costs of these rules to our economy. Fortunately, Mr. President, the big picture is not what some would have us believe. The fact is that the burden of regulation a share of our economy has not exploded as some of my colleagues have stated here on the floor. As a matter of fact, the share of regulatory costs in our economy has actually gone down, as documented by an analysis done last month by the GAO. From 1977 to this year, the regulatory cost have shrunk by 11 percent--from about 4.5 percent of GDP to about 4 percent of GDP. There is nothing in the facts to support the claim that the cost of regulations has exploded, nothing to justify putting hurdles, even landmines, in front of every regulation now on the books, and every regulation now in the works. Mr. President, many of the stories we have heard here in recent days--stories of regulators' excesses and abuses of power--are more folklore than fact. But if even these horror stories were true, would that justify putting the health and safety of the American public at risk? Would the risks justify the benefits? Would it not be better to fix the particular abuses, rather than take the Dole approach? Let us look at this another way, Mr. President. Many of my colleagues insist on using a grossly inflated estimate of the total cost of regulations--$562 billion a year, by one well-publicized estimate. [[Page S 10215]] But that number includes costs like farm subsidies, that transfer funds from one sector of the economy to another--they add up to zero on the national accounts. And they also include the costs of complying with the IRS--a burden we all resent, but one that the Dole-Johnston bill does not touch. The IRS is not covered by regulatory reform--that is an issue for tax reform, a topic for another day. So the real costs of complying with regulations is actually more like $228 billion a year, according the study cited in the GAO report I have here today--half of what some would have us believe. But what do we get for those costs? Is this just money down the drain? Not according to the Center for Risk Analysis at the Harvard School of Public Health. Its report from March of this year cites one study--from the peer-reviewed Yale Journal on Regulation--that sets the benefits of health, safety, and environmental regulations at $200 billion a year. A little quick math suggests that we are left with a total NET cost of regulations to the economy--if we take reasonable account of benefits that we can measure in dollars and cents, as well as the costs--of about $28 billion a year. That $228 billion a year in regulatory costs means about $912 dollars a year for everyone in the country, or about $2.50 a day, for all of the health, safety, and environmental protection we enjoy. If we throw in some of the benefits that cannot be measured in dollars and cents--a little extra peace of mind, some fairness in the distribution of benefits, deference to principles like federalism--that seems like a pretty fair deal. Some might call it a bargain--clean water, safe food, secure transportation, and a few basic American values thrown in--for $2.50 a day. Like most of the numbers we have heard in this debate, of course, these are estimates, extrapolations, and a reflection of how hard it is to measure these things. As much as we need to know the hard facts about the costs and benefits of regulations, we are still learning how to count them. But that small number makes sense when we look at the effect of regulations on the growth of our economy, Mr. President. It is hard to find evidence that regulations are dragging us down. Throughout the entire post-War period to the present, Mr. President, before the enactment of significant environmental, health, and safety regulations and after, our economy has continued to grow at a remarkably steady pace. When you look at the pattern of growth that our economy has been able to sustain over this period, Mr. President, it is impossible to detect a point at which regulations become a burden. Between 1980 and 1994, our industrial output rose more than 50 percent. In the past 3 years, it has increased 15 percent. Our output is now twice as high as it was in 1970, and five times as high as 1950. Our productivity has risen about 3 percent per year in the past decade. A recent comprehensive survey of the impact of environmental regulations--on those industries like chemicals, petroleum, and paper that have had the most to clean up--showed little or no correlation between regulations and profits, competitiveness, or productivity. Where is the evidence that the cost of regulations has exploded? Where is the evidence that the cost of regulations has become a major burden on the growth of the economy? It simply is not there, Mr. President. In fact, there is persuasive evidence that regulation has generated positive overall effects for our economy, by spurring innovations and economies. We know that there are positive economic effects from lowering costly threats to public health and safety, threats that take their toll in medical bills, time lost on the jobs, and so forth. By making our citizens healthier and safer, regulations make our economy more efficient, because we do not waste scarce resources paying for preventable illness and injury. But in addition to preventing wasteful expenditures--and preventing unnecessary human suffering--regulations can have positive effects on economic innovation. Here is an example from that recent Business Week article: When OSHA issued a new standard for worker exposure to formaldehyde, costs to the industry were estimated at $10 billion. But when the affected industries changed the way they operated, the costs were negligible, and the changes improved their international competitiveness. The conclusion? The regulations were a large net plus for the industry and the country. Let us think about this for a minute, Mr. President. Does anyone here want to argue that an economy that wastes less--that sends less of its waste products into the environment in which its citizens live--is less efficient than an economy that spews tons of waste into the air and water? Logic does not support the idea that these regulations will make us less competitive--as a nation, over the long run--and the data do not support it, either. So let us not let exaggerated costs and horror stories of regulatory excess stampede us into a wholesale attack on regulations that, by and large, are doing what we want them to do. But there is a real problem, Mr. President, one that is at the heart of the movement to reform regulations, a movement we should all support. That problem is the lack of flexibility and the lack of openness in rule-making and enforcement of regulations. And that problem can be traced to the arrogance and insensitivity of the public officials charged with writing and enforcing many of our regulations. It is fundamental, Mr. President--power corrupts. From the comically officious church parking lot attendant on Sunday morning to the most powerful public officials, people's heads swell when they are given power over others. Our regulatory agencies are not immune from this law of human nature. Mr. President, the abuse of private power by polluters, unsafe employers, and sellers of dangerous products--that abuse of private power is the reason we need regulations. And the abuse of public power by arrogant public officials is the reason we need regulatory reform. It should be our job to fight both forms of abuse, not add momentum to that pendulum that swings from one extreme to the other. Which of the two bills before us is more likely to remedy this problem and still protect the public interest? I am convinced that the Glenn-Chafee approach is the more balanced, effective way to restore common sense to the way we write our regulations, without putting punitive layers of paperwork and procedures in the way of better regulations than we have today. This approach requires a cost-benefit analysis and a risk assessment for public safety, health, and environmental regulations that have a major impact--$100 million--on the economy. It backs those up with specific requirements for peer review, congressional review, and executive oversight of each agency's rule writing. And the courts will examine each agency's compliance with the scientific and economic justifications for each rule. It requires that agencies include flexible, market-based alternatives in their considerations, and makes them show how the rule they choose matches up to those alternative for cost-effectiveness. The Glenn-Chafee substitute calls for a thorough-going review of regulations now on the books, and sets up a procedure to assure that we have a sensible way to rank the risks we face--from contaminated air, water, or food, or from unsafe aircraft, cars, or toys. We will attack the worst problems first, the best way to allocate our scarce resources. Mr. President, the Glenn-Chafee substitute is tough, thoughtful reform. Ironically, the Dole-Johnston bill adds to the costs of regulation by adding inflexible, prescriptive procedures to the process, subject to petition and judicial review requirements that could keep better rules--replacing the bad ones on the books today--from seeing the light of day. But most significantly, it forces agencies to write every rule according to fixed criteria--they must choose the least cost alternative among all the possible versions. But the cheapest rule may not be the best--it depends on the circumstances, it requires more flexibility. [[Page S 10216]] The cheapest broom may get the job done in most cases, but when you need an operation, maybe you would consider paying a little more for the best doctor you can afford. It depends on the problem you are trying to solve. Flexibility is not what the Dole-Johnston bill provides. Do we really think that public officials will become more accommodating, more concerned with differing circumstances, if they must, by law, choose the rule that they can defend in court as the cheapest way to get the job done? Maybe they could get the public more benefits for a little more cost--maybe they could write a rule that is more cost-effective. But not under the Dole-Johnston bill. Under the Dole-Johnston bill, agencies will practice defensive rule writing--to conform to whatever the latest case law says is the cheapest way to do things. They are not encouraged to apply a variety of criteria--maybe in some cases, the cheapest rule is the best; maybe we want to maximize the benefits in safety and health; maybe we want the rule with the most net benefits--the spread between costs and benefits. But the Dole-Johnston bill is not concerned with flexibility--it mandates that every rule fit into the same box--the least cost box. Furthermore, the Dole-Johnston bill will add bureaucracy and litigation, instead of reducing it. For example, lawyers will be able to challenge rules--or prevent them from going into effect--by raising any of a number of new issues which they cannot now raise. This will keep Washington lawyers busy, and will keep agency lawyers busy. That means everyone will be in court--instead of out in the field, enforcing the new regulations. And in an effort to avoid lawsuits in the future, agencies will practice defensive rulemaking-- being overly cautious, spending enormous amounts of money and becoming even more bureaucratic. This is not reform. It makes the regulatory system more bureaucratic, not less. It results in more litigation and less policy. It makes it harder for the Government to respond to legitimate needs. Furthermore, the bill includes new cumbersome and complicated processes by which industry and special interests can petition to have existing rules thrown out. There are numerous of these petition processes in the Dole-Johnston bill--and each of them can be brought into court if the agency denies the petition. That explosion in litigation simply is not what regulatory reform is about. The effect of these and other procedural hurdles would be either to require larger bureaucracies, with bigger budgets--or, more likely under current conditions--to make the process of getting out new, better rules virtually endless. If advocates of this gridlock think that hog-tying the bureaucracies will reduce the public's demand for safety, health, and environmental protection, they have seriously misread public opinion. The demand for these protections will collide with the cumbersome process they have devised, adding to the frustration with government--and to the hostility and suspicion of the special interests who are served by delay and weakening of those protections. Regulatory reform should be the way to make the system more flexible, more open, but S. 343--the Dole-Johnston bill--would establish a more costly, less flexible rule writing process. Mr. President, S. 343 has been written to be just a bad mirror image of the process some imagine we have today. It will tie up agencies in new procedures, adding to the costs and uncertainty of the regulatory process, the same complaints many citizens have rightfully leveled against the current process. It would waste resources by piling requirements on rulemakers that add nothing to the public safety and health, and add nothing to the effectiveness of the regulatory process, and will do nothing to make agencies more accommodating to the real needs of individuals, firms, and communities. Now I know that some of my colleagues here today, and certainly some of those business men and women who feel themselves most aggrieved by current regulations view the prospect of frustrating a few Federal bureaucrats eagerly. Some may even see regulatory reform as pay back time: a chance to dump on Federal agencies some of the burdens they have felt. Mr. President, I ask those who may feel that way to consider how they will feel if the effect on the regulatory process is to make it more complex, more time-consuming, more uncertain. Will those who feel most aggrieved by the current system be better served if they succeed in their attempt at retribution? The fact is, Mr. President, that the big corporations whose contributions have bought them access to the legislative process--those corporations have always been able to make the system work. They play the regulatory system like a harp, and they have helped to write the new rules of the game, a game in which their deep pockets and hefty legal staffs will carry a lot of weight. But what about the guy who cannot sail or fish on the Delaware River, or cannot take his family to the beach, when our waters are not protected? What about the family with crippling health care costs from their child's respiratory problems when our air is not clean? What of the small businesswoman who just wanted a fair shake and a straight answer, who is told by OSHA or the EPA, ``Sorry, that rule has been held up by another petition--we cannot tell you how to bring your business into compliance?'' Mr. President, those of us who are rightfully proud of the accomplishments of public safety and health regulations should be among the first to want them to work efficiently and effectively, without waste of taxpayers' dollars and without antagonizing the citizens who operate the businesses and who own the property that are the subjects of so many of these regulations. Any waste in the process, any wasted effort and dollars by those who comply with these regulations, is a waste of resources that could be used to create another job--or to improve the quality of our air and water, or increase the safety of our airways and highways. The tough choices before us in the next few years will leave little room for excess in any programs. Those of us who support the Glenn- Chafee amendment recognize our continuing responsibility to promote the general welfare; reform is essential to wringing every dime's worth of protection out of every regulation. We cannot maintain a regulatory process that thoughtlessly pushes the cost of regulation onto the people whose businesses create the products--and the jobs--we all depend on. We must not have a regulatory process that generates increasing resentment and frustration on the part of the businessmen and women whose behavior--and balance sheets-- must change to put our regulations into effect. Mr. President, all Americans benefit from regulations that work well, and that work efficiently. And we are all poorer if our businesses divert resources away from productive economic activity for regulations that are not well designed. But demonizing Federal regulations--legislating by anecdote, where often imaginary excesses are inflated into an anti-Government scenario of bureaucrats run amok--is surely not the way to accomplish real regulatory reform. Now, Mr. President, I am impressed by the extent of the changes in S. 343 since it was reported out of the Judiciary Committee. The sheer volume of revisions confirms, I believe, the minority view back then that it was seriously flawed and not ready for consideration by the full Senate. The changes also reflect the good work of many of my colleagues, including Senator Roth and Senator Johnston, who have lent their expertise to remove some of the worst elements of the earlier version of S. 343. They have spent hours and hours over recent weeks debating and revising the details of what we all agree is a very complex, arcane bill. But the volume of changes also has its downside, Mr. President. It means that this bill, in its current form, has never been the subject of committee hearings or debate. It has remained a moving target, defying any attempt to analyze the cumulative implications of its many interrelated subchapters and provisions. [[Page S 10217]] In the process, it has become an amalgam of innumerable drafts and revisions, last-minute concessions, and internal inconsistencies. The Dole bill began as a proposal that would frustrate, not promote reform, by adding paperwork, delays, and costs to a system already swamped by procedures. The many changes that have been adopted in recent weeks have blunted, but not deflected, its original intent. That is why I am pleased to support the efforts of Senator Glenn, Senator Chafee, and many others, to revive a superior approach to legislative reform, one that was subject to extensive hearings, and that enjoyed a unanimous, bipartisan vote from the Governmental Affairs Committee. I am pleased to be an original cosponsor of this alternative, that is a tough, considered approach to regulatory reform, that raises the standards for the regulations that will be written from now on, and that provides a rational program to assure all earlier regulations meet these new, higher standards. Mr. ROTH addressed the Chair.

Mr. BIDEN

Mr. BIDEN. I say to the Senator, maybe it is because I had the disadvantage of having practiced law, I can assure her the IRS does say, ``By the way, there is a fine.'' Fortunately, the Senator did not have to practice law. And they do that, by the way.

Mr. BIDEN. Let me make another point, and I truly appreciate the Senator's consideration. The second problem I have with the amendment as it is written is this section (a)(2)(A), it says, ``no civil or criminal penalty,'' and then it shifts to ``shall be imposed, if the court or agency as appropriate, finds that the defendant reasonably in good faith determined, based upon the language of the rule published in the Federal Register, that the defendant was in compliance with, exempt from or otherwise not subject to, the requirements of the rule.'' Let me explain why that bothers me. We can make an analogy to one of the more loathed agencies in America, the IRS. I know I do not do my taxes anymore, and I have the dubious distinction two times ago as being listed as the poorest man in the U.S. Senate. Second poor only to the man in Montana sitting behind the Senator, so I do not have a very complicated tax form to fill out. But I do not even do my own taxes anymore. I pay about 1,200 bucks a year to have somebody do my taxes when I do not have anything to declare. I do not have any money. I am not proud of that, but I do not have anything. I do not own a single stock, a single bond, a single investment. I do not own anything, except me and the bank own my house. Having said that, if I decided I was going to try to save myself this 1,200 bucks this year--were I not a U.S. Senator, I would not have anybody do my taxes, but I am afraid I would inadvertently make a mistake and there would be a headline in the newspaper that says ``Biden screws up his taxes'' so I pay somebody to do them, even though I do not have any need to do it. Having said that, I sat down and tried to figure out interest, on what interest is a legitimate deductible--on my mortgage. So I wrote this all out and I got it figured. I got this all down just right. It turns out, when I sent it in, figuring if I sent in this finished tax form to the accountant, one of these big accounting firms, that I would get a break because they would not have to do all this work and maybe it would not be $1,200 or whatever it was, maybe it would be $300--it turns out I was wrong the way I calculated the interest. I did it in good faith. I acted in good faith. I guess I am revealing the fact that maybe I am not as bright as I would like to think I am, but I am a relatively well educated guy. I acted in good faith. I went out and did it as best I could--fearful of the political consequences if I was wrong, so I had an incentive to get it right. And I still ended up wrong. Nobody suggests that, even though I relied--I acted in good faith, I reasonably, in good faith, determined that I could deduct more than I was actually able to deduct on my home mortgage interest--because I did not figure out the basis correctly, but at any rate, that I was able to do that--I doubt, when the IRS came to me and said, ``No, Biden, you owe $220 more than you calculated,'' that I should go to a court and say, ``I am not paying it; take it to court,'' and you cannot get it from me because I can prove to a court I reasonably relied on what the code said. I just made a mistake. What worries me here is that some of these regulations are understandably complicated, like the IRS code. So, if I come along, as a guy who in my State wants to build a project or dispose of a chemical or whatever, and I act in good faith and I reasonably, in good faith, determine that this law does not apply to me--when anybody who really knows, knows if I had gone to my lawyer or if I had spoken to somebody they would make it clear that I did have the requirement to abide by a different way--I do not know why we should reward ignorance. I can understand rewarding reliance, reliance on good faith: Going, disclosing all the facts to the agency, saying ``Here is the deal, this is what I plan on doing, here are my plans.'' And some agency guy or woman saying, ``That is OK.'' Then I go ahead and do that, and they come back and say, ``Wrong, wrong. We are going to fine you.'' That person should be held harmless. But what I do not agree with, that subsection (a) seems to allow, is, if I sit down as Joe Biden Waste Removal Co., read the regulations, and say, ``You know, in good faith I think I can dump this toxin in the local landfill,'' and I go ahead and dump it in the local landfill, and then the EPA, or State of Delaware comes along and says, ``No, you violated the law,'' for me to be able to go back and say, ``You know, I in good faith determined that this word meant that,'' I do not think I should be held harmless, because the public interest is at stake here.

Mr. BIDEN. I do not want to be overtechnical. The Senator from Texas, I think, is confusing the difference between civil law and criminal law. Willfulness is required for criminal, not for civil. But I do not want to get into that debate.

Mr. BIDEN. I agree.

Mr. BIDEN. Mr. President, I admire the Senator but she is fundamentally wrong on the law. But I do not want to debate that. Let me just say this. If the Senators are saying that they, in fact, are not going to move to vote on this right away, then there is not a problem. I am willing to yield the floor and go ahead and see if we can negotiate this. But if we are going to vote, if I yield the floor and we are about to vote on this issue, then I am going to speak on the issue. I do not want to speak on the issue. I would rather try to resolve it. Would the Senator from Oklahoma or the Senator from Texas be kind enough to tell the Senator from Delaware what the plan is, relative to moving on this amendment as is, in terms of the timeframe?

Mr. BIDEN. Good.

Mr. BIDEN. Let me say to my friends--it will take 30 seconds to say it--I am delighted to see if we can resolve it. If we cannot, I will have a second-degree amendment to which I will wish to speak. But I thank the Chair and yield the floor, and maybe we can talk. Several Senators addressed the Chair.

Mr. BIDEN. The Senator is reading from page 3 of her amendment where it says: No agency shall bring any judicial or administrative action to impose a civil or ciriminal penalty based upon-- (1) an interpretation of the statute, rule, guidance, agency statement or policy, or license requirement or condition, or (2) a written determination of fact made by an appropriate agency official, or state official as described in paragraph (a)(2)(B), after disclosure of the material facts at the time and appropriate review, if such an interpretation or determination is materially different from the prior interpretation made by the agency or State official described in (a)(2)(B), and if such person, having taken into account all information that was reasonably available at the time of the original interpretation or determination, reasonably relied in good faith upon the prior interpretation or determination. What that says to me, Mr. President, is not, I think, what the Senator intends. Would the Senator object to language explicitly saying that if all the material facts are not disclosed to the agency at the time of the letter of approval then a civil and criminal penalty could apply if the law was violated. Would the Senator have any objection to clarifying it?

Mr. BIDEN. So, if, in fact, the agency, after the fact, the agency writes a letter, saying, ``John Doe, taxpayer, go ahead and build your building on the site you asked whether you could build it on,'' and then finds out later that John Doe told them it was high ground, and it turns out to be a literal swamp that they filled in, I assume that John Doe would not be able to say in court, ``Look, I got a letter here and it says go ahead and build.'' The agency would be able to say, would they not, that, well, ``We were not given all the facts, your honor, and the penalty should prevail,'' is that what the Senator is saying?

Mr. BIDEN. I am not suggesting it is not. I want the record to reflect if all the material facts are not made known to the agency at the time the approval is given, I assume the taxpayer does not get the benefit of being held harmless, is that correct?

Mr. BIDEN. If the Senator reads the first section of the Senator's section 709, subsection (1): No civil or criminal penalty shall be imposed by a court, and no civil administrative penalty shall be imposed by an agency, for the violation of a rule. By law, we are telling a court they cannot impose a penalty. My question is, Is the exception to that, if it is clear that on a material fact the taxpayer did not disclose all the facts, would the court be able to say as the Senator reads her own amendment, look, I understand section 709 of the amendment says we cannot impose a penalty? But if we look forward down here, mister lawyer for the defendant, it says material facts--the material facts were not all made available here; therefore, even though the taxpayer has a letter saying go ahead, I will fine the taxpayers.

Mr. BIDEN. Where does it say that? Can the Senator show me where in the amendment it says that?

Mr. BIDEN. I will cease and desist and negotiate with my friends. I assume we are not going to vote on this right away, correct?

Mr. BIDEN. Yes, I will be delighted to yield.

Mr. BIDEN. Mr. President, I rise to both compliment the Senator from Texas on what she is attempting to do, if it is what I think she is attempting to do, and I would like to be able to ask her a few questions and ask her to consider whether or not she might be willing to make a few modifications. Let me begin by saying that the idea of an individual or a corporation expending their time, energy, and money in an effort to take an action in which they operate in total good faith, and they go to a Federal agency, speak to an appropriately authorized bureaucrat, someone with authority to make a judgment, and are told that, yes, what you are proposing, based on what information you have given us, is totally appropriate, is consistent with the rules and regulations, and you should be able to go forward; and then that person goes forward and finds--after they have made their investment, after they have undertaken their action, they are told, wrong, wrong, you are violating the regulation, you are violating the rule, you are subject to a civil or criminal penalty here. And the taxpayer retorts and says, but they told me it was all right. They said it was OK to do this. I think that taxpayer should, as this amendment suggests, be exempt from civil and criminal penalties, with no civil administrative penalty, either court imposed or administratively imposed, if they violate a rule after having been told by the rulemaker that it is OK to go ahead and do this. Now, I understand from the comments--and I was able to listen to some of the comments of the distinguished Senator from Texas in my office on the television, but I did not hear them all. As I understand it, her fundamental intention is to hold harmless people who act in good faith, rely on in good faith, and provide in good faith with the blessing of the appropriate agency. So my question is: Is that the major thrust and purpose of the Senator's amendment?

Mr. BIDEN. May I ask the Senator another question. If, in fact, a taxpayer goes in to the regional director of the EPA or into any number of Federal ``alphabet'' agencies and sits down and says, I want to do the following, and then in laying out the facts of what they intend on doing does not disclose all the facts--does not, for example, tell the regulator that where they want to lay this pipe or where they want to build this building is in the middle of a swamp. He says, ``I own a piece of land that is high ground and here is my plan, this is what I want to do. Can I do it?'' If the taxpayer does not fully disclose to the agency the actual facts as the taxpayer knows them, does the Senator intend for that taxpayer to be held harmless, if it turns out the rule has been violated?

Mr. BIDEN

Mr. BIDEN. Will the Senator yield a minute?

Mr. BIDEN. I thank the Senator from Texas for her willingness to make the accommodations she has. Because she has operated under such good faith, I will vote for this amendment if there is a vote. I want to make it clear it does not satisfy all of my concerns and objections, nor, I suspect, do the changes satisfy her. There is an effective date in here that would make this, in effect, retroactive. I think that is bad public policy. I think it is also inconsistent with having a piece of legislation that will take effect as a whole upon passage but one section of it that looks back and is retroactive. I also am still not satisfied, nor, I suspect, is the Senator from Texas satisfied, with the section allowing, in effect, an individual to be able to say, ``I acted in good faith,'' and not be subject to penalties or not be subject to civil or criminal penalties. There are a few other things I still have problems with. If we ever get to the point where, in the substitute that the Senator from Ohio is going to offer to this legislation as a whole, I would attempt to put in the language more to the liking of the Senator from Delaware, were that ever to prevail. Having said that, I sincerely thank the Senator from Texas. This is, from my perspective, a much improved version and meets the vast majority of my concerns that I had relative to the amendment. I yield the floor.

Mr. BIDEN

Mr. BIDEN. Will the Senator yield for an observation?