Dale Bumpers

Mr. BUMPERS

Mr. BUMPERS. I won't be asking for a quorum call.

Mr. BUMPERS. Mr. President, I hope that we can probably yield time back on this amendment. Senator Hollings is a cosponsor of the bill which this amendment is based on, as are several other Senators. It is a very simple amendment. I first brought this issue to the Senate's attention in 1984 when it was determined that Charles Wick, who at that time was head of the U.S. Information Agency, had been tape recording conversations with just about everybody he talked to, including President Reagan and President Carter, without their knowledge or consent. He revealed that he had recorded over 80 conversations--Cabinet members, Presidents, everybody. They did not even know it. I do not mind telling you, while I knew that that was legal, I was deeply offended by it. And I am still offended by it. This is an area, that is so often the case, where the States are way ahead of the Senate. Recently, Attorney General Janet Reno testified before our Appropriations Committee, and I asked her, ``General Reno, I have a bill pending in the Congress that would make it a crime to tape record conversations where only one party knew it was being tape recorded; namely, the person doing the recording, and the other person didn't know it. How do you feel about that, General Reno?'' ``Well,'' she said, ``you know, that came up in the Florida State legislature back in the early 1970s. And we passed a law in Florida that made it a crime to tape record telephone conversations where only one party knew about it.'' And I said, ``Well, let me ask you this: What were you doing at the time?'' I guess she was district attorney or whatever they describe that position in Dade County, FL. And finally I said, ``Well, General Reno, how did you feel about the Florida legislation?'' She said, ``I favored it.'' Well, I favor it, too. And Charles Wick is not the first, and he certainly will not be the last, to have ever recorded telephone conversations without telling people. I have introduced this legislation three times--1984, 1993 and 1998. I will never understand--as those of us who lose never seem to--how, on God's green Earth, anybody would vote against prohibiting and outlawing such an outrageous invasion of people's privacy. Sometimes I am sitting in my office and talking on the telephone to people back home that are wanting me to support legislation, and sometimes I am sort of hanging foot loose and fancy free, saying things that I would not say publicly. And do not be offended; that applies to every single Member of this body. Every one of them have done it. Sometimes I say things, and later on I get to thinking, ``You know what? If that guy was tape recording that''--he had a perfect right to--``I wouldn't have to know about it.'' And you know something else? Approximately fifteen States have done exactly what Florida did; they have outlawed this. The Congress is the last one to ever get the word. On that grand jury amendment I offered this morning, 28 States allow a witness' attorney in a grand jury room. And Congress is still dithering and ringing its hands and saying--``Well, I don't know. We need to study it.'' And here we are with one of the most egregious abuses known-- and we continue to tolerate it. What if you called from Maryland to Virginia? Let's just assume the Governor of Maryland calls the Governor of Virginia. Now, the Governor of Maryland assumes that he is protected because Maryland has a law against recording a telephone conversation when both parties are not privy to it. But the Governor in Virginia can tape-record the conversation and he hasn't violated Maryland law because he isn't in Maryland, he is in Virginia, where it is legal to tape-record such conversations. If for no other reason, we should have a Federal law to make the matter consistent. Now, in 1984, when I joined with Senator Metzenbaum on a floor amendment on this subject, I listened to the arguments over and over again that this would impede law enforcement. I want to tell you, so there will be no misunderstanding about this, I don't want any Senator coming on this floor and asking me, ``How about law enforcement?'' I have exempted intelligence gathering; CIA, DEA, everybody else is exempt; I have exempted the FBI, every sheriff, every police department. I have exempted anybody who even professes to know anything about law enforcement or intelligence gathering. I have exempted telemarketers, whose bosses have a right to monitor their conversations to see how effectively they are doing on the telephone. We have made this provision as palatable as we can possibly make it, and we have done it in a sensible way. Colleagues, you will never get a chance to vote for an amendment that has been thought out any better than this one has. It has now been 14 years since I first gave the Senate an opportunity to pass such an amendment as this. As I say, it is very narrowly tailored. All I could do, if I wanted to use up the entire 40 minutes, is to stand here and repeat over and over again how offended I am at the thought of somebody tape-recording a conversation with me and not telling me about it, and the first thing you know, I see it on the front page of the Washington Post. This amendment has nothing to do with Linda Tripp. This is not a partisan, political amendment. I am telling you, I introduced a bill on this subject in the Senate in 1984, and I introduced a similar bill in 1993, and I am offering it to this body in 1998. Linda Tripp played no part. You make up your own mind about that case, whatever it may be. I am just telling you, as a general principle and as a citizen of the Nation that values the privacy of its citizens above all, please support this amendment and let's put this one to rest once and for all. I yield the floor and I reserve the balance of my time.

Mr. BUMPERS. Mr. President, I ask unanimous consent the call of the quorum be rescinded.

Mr. BUMPERS. Mr. President, I want to make one other point that was brought to my attention by the floor managers which I failed to mention a moment ago. That is that my amendment also provides an exemption for anybody, male or female, who is threatened by a stalker. They would be exempt if they tape-recorded a conversation. I wanted to make that clear so everybody would understand that is also covered as an exemption under this amendment. I yield the floor and I suggest the absence of a quorum.

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

Mr. BUMPERS. Mr. President, we have been in a quorum call. Who is the time being charged against under the order?

Mr. BUMPERS. So under the order, a quorum is charged against whoever asked for the quorum call?

Mr. BUMPERS. Mr. President, is the motion to reconsider debatable?

Mr. BUMPERS. Has a motion to table been made, Mr. President?

Mr. BUMPERS

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

Mr. BUMPERS. Mr. President, I send an amendment to the desk.

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

Mr. BUMPERS. I ask unanimous consent that I be permitted to send a modification to the amendment.

Mr. BUMPERS. Mr. President, I ask for the yeas and nays on my amendment.

Mr. BUMPERS. Yes.

Mr. BUMPERS. I don't know. I need to meditate on that.

Mr. BUMPERS. I noticed there was no prompt response on that side of the aisle to a request for the yeas and nays, so I assumed some sort of cabal was in the works.

Mr. BUMPERS. I am not sure I look forward to voting on a second- degree amendment, but then it may be, if we are going to have a unanimous consent agreement of any kind, it might preclude a second- degree amendment. Let me think about it.

Mr. BUMPERS. I want to suggest to each Senator that they meditate on this proposition. The doorbell rings and the Senator's wife answers the door. There is a nicely dressed person, in a suit and tie, standing at the door. He hands her a paper, and she says, ``What is this?'' He says, ``That's a subpoena.'' She says, ``What does that mean?'' He says, ``That means that the district attorney, the United States attorney wants to question you.'' ``Well, about what?'' ``I don't know.'' ``What does this paper mean?'' ``It means that you don't have any choice. You must go down and appear before the grand jury.'' ``Well, how long will that take?'' ``Well, as a matter of fact, sometimes it takes several days. Some witnesses have been known to have to appear for 5 and 6 and 7 days, different times.'' ``But I don't know anything. What can I testify to?'' ``Ma'am, I'm just a functionary. I have been requested, and it is my official duty to present you with this subpoena. Incidentally, the U.S. attorney also wants you to bring all of your telephone calls and also any other documents or letters you may have in your possession that would relate to anything.'' ``Well,'' she says, ``Do I get to bring a lawyer with me?'' ``Oh, yes, ma'am, you can bring a lawyer.'' Then she says, ``Well, can my lawyer sit in the grand jury room with me?'' ``No, ma'am, I'm afraid not. Your lawyer can sit outside the grand jury room but he can't come in the room with you.'' Now, to a lot of people, this is a real story. This is not an Orwellian bad dream. This is what happens to a lot of innocent people in this country on a daily basis. She doesn't have any choice but to show up. If she had been arrested and charged with a crime, and she was a possible criminal who was about to go on trial and serve jail time if convicted, she would have a constitutional right to a lawyer, or to remain silent. She would not have to tell the U.S. attorney anything. She could remain silent. She could not only remain silent; she would be provided a lawyer if she could not afford one. How many times has every person in the Senate stood on this floor and said criminals have more rights than ordinary citizens? In this case, it is true. I just gave you a classic illustration of why it is true. If this woman were arrested by the police, or charged with a crime, they couldn't treat her in such a way. But, because she is an ordinary witness, an innocent citizen, she can be made to go and testify. She can be made to bring any documents the U.S. attorney chooses to make her bring. She can be required to walk in the grand jury room and sit alone on the stand in abject terror because her lawyer is not permitted in the room with her; he must sit outside. It is true that she can ask for a recess, leave the witness stand and say to the court, say to the U.S. attorney: ``Before I answer that question, I would like to talk to my lawyer.'' He says, ``OK.'' So she goes outside and she asks her lawyer, to whom she has just paid a $5,000 retainer because she is terrified--not because she has done anything wrong--she has just paid this lawyer $5,000. They are people of very modest means. He cannot go in the grand jury room, but she can go out and ask him a question. She is not a lawyer and she is not sophisticated enough to know on what questions should she defer to her lawyer. She could answer the most incriminating question in the world, in all of her legal ignorance, and not know she had just implicated herself. What if she says to the man who appeared at her door with a subpoena: ``You say you don't know what they want to talk to me about?'' He says, ``Well, it's about the parking meter scandal.'' ``I don't know anything about any parking meter scandal.'' ``Well, I'm sorry, ma'am.'' She says, ``If they asked me something and I can't remember it, or if I try to remember and I give them an answer and it turns out to be wrong, then what happens?'' ``Oh, then in that case, ma'am, they may charge you with perjury.'' Here is a classic case of a criminal justice system that is not working. I heard all these lamentations about human rights in China, but you tell me, how much worse can a situation get, when innocent people every day in this country are called to testify--and, frankly, as good citizens they should be willing to testify--but when they get in the grand jury room with the U.S. attorney, they are subject to his mercy. He can ask them--he can ask this woman, first crack out of the bat, in this investigation of a parking meter scandal: ``Have you been faithful to your husband ever since you got married?'' He can do this because there is no requirement of relevancy in the grand jury. ``Well, as a matter of fact, I think that's personal.'' ``Ma'am, I'm asking you a question. I want an answer. I understand that one of your children is gay; is that true?'' ``Well, what's that got to do with anything?'' ``Ma'am, I'm asking you the questions. I'm the U.S. attorney here, and I can ask anything I want. Is it true one of your children got picked up one time on a pot charge when he was a senior in high school?'' ``What is that relevant to?'' ``Ma'am, as I said, I'm asking the questions here. Now, I'm asking you, and you are legally required to answer truthfully.'' Senators, I'm going to tell you something. You think this is farfetched? Believe me, believe me, it is not. It happens all the time. You ask yourself this question: How would you like to be in the grand jury room without a lawyer--nobody--and you ask the U.S. attorney: ``Look, I would like to go outside the room. My lawyer is sitting just outside the door. I would like to talk to him and ask him whether I should answer this question or not.'' ``You have a right to do that, ma'am. Go right ahead.'' She goes out. After awhile, he asks her another one of those silly questions. And she says, ``You know, I don't know how to answer that. I need to talk to my lawyer again.'' The third time she does that, these grand jurors start nudging each other. ``This woman is hiding something. She knows a lot more than she is willing to talk about. Why is she going outside to talk to that lawyer so much if she doesn't have something to hide?'' That is the psychological part of trying lawsuits. I am telling you, I was a trial attorney for 18 years before I became Governor. I have seen prosecuting attorneys, I have seen local district attorneys, I have seen U.S. attorneys, eaten up with political ambition. And when they are eaten up with political ambition, do you know what they want? All the notches in their belt they can get. They want to be able to boast, ``I never failed to get an indictment I asked for.'' The chief judge of the State of New York once said, ``You can get a grand jury to indict a ham sandwich if you ask them to.'' I had a U.S. attorney tell me one time, ``I have never failed to get an indictment from a grand jury.'' I can tell you, if he had ever failed to get one, that would be one of the most abysmal failures I have ever heard of, because I know all kinds of U.S. attorneys and DA's all over this country who have been able to get an indictment every time they ask for one. Do you know why? Because there are 23 grand jurors sitting there who know nothing except what the U.S. attorney proposes to tell them, only what the witnesses he decides to call will tell them. Mr. President, I am not talking as any bleeding-heart liberal. I have defended a few criminals in my life. A couple of them I felt pretty sure were guilty, but the first thing I learned in law school is that this is a nation of laws; everybody is entitled to a lawyer, and to a fair trial. The grand jury system has gotten so bad that 27 States in this Nation have abolished grand juries. You think about that. The States are always ahead of us in Congress. Mr. President, 27 States have abolished the grand jury system, and 18 States have laws that allow the attorney for a witness to sit in the grand jury room with the witness. Now, what do these states know that we don't know? My amendment is just about as simple as you can make it. It says one thing, that a witness who has an attorney and wishes that attorney to sit in the grand jury room with them may do so. What is wrong with that? You tell me. Anybody, tell me. If a U.S. attorney is afraid to ask questions because he doesn't want her attorney to hear, what is objectionable about it? And why should he? Why should a U.S. attorney fear asking any question that he is going to ask later, perhaps, in the courtroom anyway? This is supposed to be a fair fight. Is he afraid of the truth? Do you know why we have a grand jury system? Because the Federal Government was not to be trusted and the Founding Fathers put the requirement in the Fifth Amendment: We will have a grand jury system. And the reason we cannot abolish it is because it is in the Constitution, and I would not change that. The States are not so fettered, and they are abolishing it right and left because they know that grand jury system is often not fair. It is just short of a Star Chamber proceeding because only one side of the case is heard. In medieval England people were tried by ordeal--they were thrown into the lake or had their hand dunked in boiling water. If they survived the ordeal, they were innocent. If they didn't, it didn't make any difference. That is what was called a Star Chamber proceeding. That is what people used to go through when they missed church. They were put in the stocks or they were subjected to boiling water or a whole host of other things. So that is the reason that many of the Founding Fathers came here after being abused and abused and abused in England. Because they were mostly a poor class, and they didn't trust Government. Because they had not trusted the King, they knew the King had all the cards, and they wanted to level the playing field and they wanted it to be a fair fight. I can tell you, we do not have a fair fight now in the grand jury. So, isn't this just simple justice, to allow a witness to have a lawyer? Is this complicated for anybody listening, that a witness who is not charged with anything should have a right to a lawyer in the courtroom, not sitting outside? Do you think a U.S. attorney would start off asking a Senator's wife if she had been faithful to him all of her life if her attorney was sitting there? I promise you he wouldn't. Do you think he would ask if her children were gay or had ever smoked pot if her lawyer was sitting in the room? Of course, he wouldn't. This is about simple deterrence of misconduct. I ask those who will oppose this amendment, What is the prohibition now under existing law to keep a U.S. attorney from asking those kinds of abusive questions, and worse? There is none. I remember one time talking with Senator McGovern when he was a Senator. One of these questions came up about charging everybody with everything and vetting everybody who came through. If you get nominated to an executive position, you have to go through a kind of inquisition. George McGovern said, ``I want it on the record right now: I stole a watermelon when I was 12 years old.'' I can tell you, what we have right now in the grand jury system is not fair, and every Member of this body knows it. I am not defending criminals. I am not saying give criminals an upper hand. What I am saying is give witnesses the same choices you give a defendant, the criminal, which is the right to the assistance of counsel, as guaranteed in the Sixth Amendment. Mr. President, I hope everybody understands this issue. I don't want to belabor it. It is the kind of amendment that doesn't need a lot of discussion. But you think about this, I say to Senators, your wife or family member who is as innocent as a newly ordained nun, who never did anything wrong in her life, is going before the grand jury system hardly knowing why she has been called and then subjected to day after day after day of testimony, or even 2 hours of testimony--whatever it is. At least put her on a par with the criminal defendants who are arrested and have to be placed on trial, who have a right to an attorney.

Mr. BUMPERS. I will be happy to yield.

Mr. BUMPERS. Mr. President, that is a perfectly fair, legitimate undertaking, and I will not be much longer. Senator Levin is here and wishes to speak on the amendment, and any other cosponsors of the amendment who are listening should feel free to come over and speak, if they choose. The point I was about to make, and I will close on this--is this: The American people are fairly happy right now because the economy is going well. But I can tell you, there is one underlying sentiment in this country that is undeniable, and it is that the vast majority of the people in this country don't think we, who live in this rarefied atmosphere, know what their everyday lives are like, and they are right. They are right. Here is an opportunity to restore people's confidence in the system. It doesn't happen often. One of the reasons this amendment may not prevail is because in the scheme of things, with 268 million people in this country and probably no more than, what should I say, 10,000, 20,000 at most will appear before grand juries in any given year and answer questions, who cares about 10,000 people out of 268 million? I care. If I didn't, I wouldn't be staying here tonight to offer this amendment. I first started to object to voting on this in the morning, but the more I thought about it, the more I thought that it might be good. It might be good for Senators to reflect on this overnight and to think about the fact that justice denied to one single soul is an aberration to a free nation. I sincerely hope people will think about this and think about it in terms of their own personal lives--not some obscure thing you read in the Washington Post every morning or the New York Times--but you think about some of these things happening to people, and ask yourself: How would I feel about that? And, if a member of your family were involved, wouldn't you wish that this amendment was in place as a matter of law? Mr. President, I ask for the yeas and nays on my amendment.

Mr. BUMPERS. I yield the floor. Mr. HATCH addressed the Chair.

Mr. BUMPERS

Mr. BUMPERS. Madam President, the administration has raised very serious objections to the Murkowski amendment.

Mr. BUMPERS. Madam President, the administration had previously, and may still have, serious objections to the Murkowski amendment. But he and I had a conversation this morning. He has modified his amendment. The modification is at the desk. For the edification of our membership, simply because this may come up again in conference or even later on the floor, in 1906 the Congress passed a law giving every Native Alaskan the right to claim 160 acres of land in Alaska. In 1971, under the Alaskan Native Settlement Claims Act, we repealed the old 1906 Act. What Senator Murkowski seeks to do is very laudable, in my opinion. He is simply saying those Native Alaskans who would have otherwise had a right to claim 160 acres under the old 1906 law, but were in Vietnam and not physically present in Alaska so they could file such a claim--he is simply saying under this bill that they will be grandfathered in. If they were in Vietnam between 1969 and 1971, they are entitled to a claim. Some of these claims would be in conservation areas. That was the first, primary objection by the administration. We have changed that so the administration can select nonconservation lands if a claim within a park or wilderness or wildlife refuge is inconsistent with the purposes of that conservation area. So that takes care of most of it. They were vitally concerned about the cost which, as I say, should be mitigated greatly by this compromise we have entered into. I simply want to say there is one other objection the administration has. They are concerned about allowing people to claim 160 acres if they were not in Vietnam. The amendment does not really say you had to have been in Vietnam, but they had to have been in the military. They think that is a little broad. But in conference, whatever their objection is I feel sure can be worked out. I thank the Senator from Alaska. We had a hearing on this, but we had not marked the bill up. So, with those considerations, I think it is well to go ahead and approve it. If they still object to something, I think it will be something we can work out in conference. Ms. MIKULSKI addressed the Chair.

Mr. BUMPERS

Mr. BUMPERS. Mr. President, I rise to express my profound gratitude to my distinguished colleague from West Virginia, Senator Byrd, for always injecting a meaningful, penetrating history lesson such as we have just been subjected to. It had not occurred to me that it has been 211 years since those magnificent days in Philadelphia brought us this sacred document we call the Constitution which has made us the longest living democracy on Earth, under a Constitution that is the longest living organic law under which any nation has ever lived. I have made speeches on the floor time and again about what I call the trivialization of the Constitution. When one considers since Congress first convened there have been over 11,500 efforts to amend this document, over 11,500 resolutions introduced in the House and the Senate to amend the work of Madison, Franklin, Hamilton and Adams, and all those great minds which, as the distinguished Senator knows, the great scholar Arthur Schlesinger called the greatest assemblage of political genius ever under one roof--I don't quarrel with that for an instant. As you have so eloquently pointed out, those men were schooled in the art and the nobility of government. They were historians and they were lawyers, but they were brilliant men. They knew there would be charlatans coming down the pike, trying to trivialize the Constitution. I remember some since I came to the Senate. I am very pleased to say that I will, at the end of this year, have been a Member of this body for 24 years. I voted for one constitutional amendment the first year I was in the Senate, and it was a mistake. I am often asked by some member of the press, ``Do you regret some of your votes?'' Of course I do; I am not infallible. If I were doing it over again, I don't know which ones offhand, but if I went through my record, there would be votes I would change. And one amendment to the Constitution which I supported--which, in my opinion today, was dead wrong--I will tell you, was the Equal Rights Amendment. We didn't need a constitutional amendment to provide women with equal rights. We did that in the Civil Rights Act of 1964, and it has been working just fine. We did not have to tinker with the Constitution to do it. I believe my staff has told me I have voted 38 times against constitutional amendments. I think I want that on my epitaph. And, while noble men may disagree on this, I do not intend before I leave the Senate to cast a vote to change the Bill of Rights. The Bill of Rights--I defer to my colleague--I think they were ratified in 1791. But when the framers left Philadelphia, it was understood that James Madison was going to compose these 10 amendments to the Constitution. These are today called our Bill of Rights. That is the first ten amendments to the Constitution, which provide us freedom of the press, freedom of religion--we have more freedom of religion than most of us are taking advantage of now--and freedom of speech. Sometimes when I read stories in the press, I think, surely there is some way we can change the freedom of the press clause in the Constitution to stop this sort of irresponsible reporting. But I am not going to do that, because I don't think you can do it without creating a lot more problems than you will solve. Senator Byrd, if I had my way, no youngster would graduate from college without a fundamental, profound understanding of the Constitution. And precious few of them are graduating with that knowledge today. Congress deserves a lot of credit. Oh, we take a lot of slings and arrows in this body about knuckling under the special interests, the voters, and the money, and all that sort of thing, but does it not speak well for the Congress that, out of 11,500-plus efforts to change the Constitution, we have only seen fit to do it 27 times? And that includes the first block of 10, called the Bill of Rights, in 1791. You take the 10 in the Bill of Rights out; that leaves 17 times we have actually amended the Constitution. And you remember, we decided we wouldn't drink, and later we decided we would drink; you take those 2 out and there are only 15 times. That is pretty amazing, is it not? We are importing workers. You heard the debate here just recently about how we are going to allow 75,000 to 95,000 high-tech personnel from abroad, special visa status to come to this country to work. I didn't vote for that bill, incidentally. I still think it was a mistake. But one of the things that troubles me about that is why we are going all out in this country to train people to be computer experts or high-tech gurus. Yet this poor document, the Constitution-- which is next to the Holy Bible in sacredness to me--youngsters are graduating from college, and they don't know who James Madison is --the father of the Constitution. Now, I don't want to denigrate any of my colleagues, but I have to look very carefully at somebody today who thinks he can improve on the words of James Madison. I can assure my colleagues and my constituents back home that I will leave here this fall still only having voted for only one constitutional amendment in my 24 years here. So, Mr. President, I might just quit on this one note. If I were going to confess to this body the one thing about the Constitution that disturbs me more than anything else--it was a good idea in its time, but I am troubled about it now--that is the fifth amendment requirement of grand juries. The States have long since pretty much eliminated grand juries. But the grand jury system was guaranteed for serious offenses in the Fifth Amendment because they wanted a jury of your peers to make the decision to indict, not the King. As a matter of fact, the authors of the Constitution intended to make sure that we had no more kings, and they succeeded very admirably. We have had 42 Presidents, I guess, and no kings, since 1787. But I will say this. Their idea was that you could trust the people with your deciding fate and your innocence or guilt a lot more than you could the Crown or anybody representing the Crown. And, so, the grand jury system had the noblest of intentions. But I would be remiss if I didn't relieve myself of this thought for the benefit of whoever wants to listen. I can tell you, what is going on with the grand jury system in this country right now is dangerous-- dangerous in the extreme. I am not suggesting we change the Constitution to do away with grand juries, but I am saying that the grand jury system needs some control and it needs reforming. I have introduced legislation which will do that. Well, Mr. President, this conversation has been the highlight of my day. I hadn't thought lately about that hot July in 1787 in Philadelphia. It was so hot and George Washington was so intent on everything being secret, they closed the windows and they almost suffocated just to make sure that nothing of the deliberations was heard on the street. But what a lucky people we are to have the honor and the privilege of living in this great country of ours because of those men. Some of them fought in the Revolution, sacrificed their families to fight in the Revolution. And they went there and provided us with this magnificent document. I thank the Senator again for raising our awareness level on that point. I yield the floor.