Conrad Burns

Mr. BURNS

Mr. BURNS. Mr. President, I suggest the absence of a quorum.

Mr. BURNS. Mr. President, I ask unanimous consent that the vote be vitiated on the Burns amendment to H.R. 3019, amendment No. 3528, and the amendment be withdrawn.

Mr. BURNS. Mr. President, I ask unanimous consent to withdraw my appeal of the ruling of the Chair on my amendment No. 3551 yesterday.

Mr. BURNS

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

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

Mr. BURNS. Mr. President, I appeal the ruling of the Chair and call for the yeas and nays.

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

Mr. BURNS. Mr. President, we have already debated the merits of the second-degree amendment, which establishes the commission to study the reorganization or the probable reorganization of the courts of appeals across this Nation. But the real emphasis should be placed upon the first-degree amendment, which actually has something to do with the restructuring of the ninth judicial circuit. We have already debated the issue. Those who are opposed to the issue made their points, and made them very well. But I think the most compelling reasons why we should do this is that it is just a big, big circuit. Under this proposal--that is, the first degree--to split the ninth circuit, California, Hawaii, Guam, and the Northern Mariana Islands would form one 15-judge unit. That would be the ninth circuit. Alaska, Arizona, Idaho, Montana, Nevada, Oregon, and Washington would form the new twelfth circuit of 13 judges. The caseload would be split, and the heavy end of it would still be with the California, Hawaii, or the old ninth. They would still, under today's procedures, have 60 percent of the caseload, while 40 percent would go into the new twelfth circuit. The reasons are as compelling for those States that would remain in the ninth after the newly formed twelfth went into full operation. The circuit is just too big--9 States, 1.4 million square miles, 45 million people. It is, by far, the largest circuit of all of the 11. By comparison, the sixth serves less than 29 million people, and every other circuit serves less than 24 million people. So, basically, this is the right thing to do. The commission, too, should move forward and get their work done, as far as the rest of the country. We have had studies and we have had recommendations, and now it is time to start the wheels in motion. Mr. President, we have already debated this. I have already made the points. I think they are very convincing on why we should do it. I yield the floor.

Mr. BURNS. Mr. President, I ask unanimous consent----

Mr. BURNS

Mr. BURNS. Mr. President, I call up amendment No. 3530 and ask for its immediate consideration.

Mr. BURNS. Mr. President, I offer this amendment on behalf of the people of Montana. This issue was reported--in other words, dealing with the ninth judicial district--this issue was reported out of the Judiciary Committee with an 11 to 7 vote, with strong bipartisan support, and a conference report that was overwhelmingly recommending its passage. It has often been said that one would wonder, why is there such a movement to reform habeas corpus when the very idea of habeas corpus is as American as apple pie and hot dogs? Americans have always been sensitive to the rights of the accused. It has been a hallmark as long as this United States has been a union. But in our court of appeals, Mr. President, we happen to be situated, in the State of Montana, in the largest judicial district. It is the ninth: Montana, Idaho, Washington, Oregon, California, Nevada, Arizona, Hawaii, and Alaska. Our proposal, under this proposal to split the ninth circuit, would leave California, Hawaii, Guam, and the northern Mariana Islands with a mission of a 15-judge unit. Alaska, Arizona, Idaho, Montana, Nevada, Oregon, and Washington would form the new 12th circuit of 13 judges. The caseload would be split, and 60 percent of the present-day caseload would still be represented in California and Hawaii, and 40 percent of the present-day caseload would be in the newly formed twelfth. The reasons are very, very compelling for those States that would remain in the 9th district, after the newly formed 12th went into full operation, to remain there. In this amendment is also a section that allows a national study of our courts of appeals. I think that study should move on. It was recommended by the Senator from California, and I see her on the floor. It made good sense whenever the suggestion was made, and it still makes good sense today. But I think we already have studies. We have studies on the shelf, and yet, after we got the studies, nothing was done to address the problems. Let us take a look at this circuit. The ninth circuit is big, too big. It includes nine States, 1.4 million square miles, 45 million people. By comparison, the sixth judicial district serves less than 29 million people, and every other circuit serves less than 24 million people. The Census Bureau is telling us that by the year 2010 the population in the ninth, if it remains in its present size, will be more than 63 million people because of the demographics and the movement of people. That is a 40-percent increase in just 15 years. Judge O'Scannlain, of the ninth judicial district, testified, and I quote: In light of the demographic trends in our country, it is clear that the population of the States in the ninth circuit, and thus the caseload of the Federal judiciary sitting in those States, will continue to increase at a rate significantly ahead of most other regions in the country. The number of judges stands at 28. The fifth judicial district has 17 judges; the first has 6 and the seventh and eighth each have 11. The average of the circuits, other than the ninth, is 12.6 judges. I do not know what they do with the other four-tenths of 1 percent. The ninth recently unanimously made a request from that district requesting an additional 10 more judges. So the prospect of even a larger ninth will be upon us in just a very near future. If you can imagine having 38 active judges, in addition to 12 senior status judges, on one court, that should give all of us pause. If we do not deal with this issue now, we will only be putting it off into the future. In other words, let us get started. Having said that, this is the situation that is existing in the district itself today. No. 1 is delay. The ninth is the second slowest of all the circuits. The chief judge himself on the circuit commented in his written testimony, ``It takes about 4 months longer to complete an appeal in our court as compared to the national median time.'' Mr. President, 315 days is the national median time from the filing of appeal to the final conclusion. In the ninth, it is 429 days. Other methods have been used and they come up with similar results. What does it do? Delay; the bigness leads to inconsistency, unpredictability, and I think what is more important, the lack of collegiality. The formation of the 3-judge panel, and with 28 of them there on the court, gives us 3,276 different combinations whenever you go up before the ninth district court of appeals. It is difficult for litigants to predict outcomes. The sheer size of the caseloads makes it increasingly difficult for judges to keep abreast of the decisions to avoid conflicting decisions. We will be hearing the argument there are new devices, new computer systems, where they have a ready library of information to where they be consistent with other decisions. Mr. President, that just has not been the case. They cannot even use what all other districts use. That is en banc. In other words, all the judges in that district getting together, listening to a case, trying to come to some consensus in the consistency of the law. The ninth does not even use that. Mr. President, 28 judges do not use that procedure to resolve intracircuit conflicts. Instead, they use a limited en banc procedure, forming 11- member panels--10 drawn from the list of judges plus the chief judge. The method permits as few as 6 of the sitting judges to dictate the outcome of a case contrary to a judgment of 22 others, solely depending on the luck of the draw. In summary, there was a judge in the eleventh circuit that noted what happens and the many ill effects you have in business courts. First, the dynamics of a jumbo court are such that as the court grows larger, the productivity of individual judges declines. Second, the clarity and the stability of the circuit law suffers, creating incentives to litigate that do not exist in jurisdictions with smaller courts. Finally, jumbo courts create and maintain a legal environment that is inhospitable to individual rights. Individuals find it more difficult to conform their conduct to increasingly indeterminate circuit law and suffer higher litigation costs to vindicate a few remaining clear rights to which they may claim. In other words, we go right back and we say it is too big. The conclusion is that it is inevitable that this is going to happen. A study of 23 years ago called for it then. I think they called for it and also the split of the fifth circuit at that time. The fifth circuit did what it was told to do or was recommended to do and it has been very, very successful. This is a balanced approach and allows the wheels to start turning where we can serve our people in the judiciary a lot better and more efficiently, with more consistency. It is the right thing to do. After all, we provide the services for our citizens. The infrastructure has to be there in order to get it done. The fifth circuit split was very, very successful. I think when we look at the evidence, the evidence of what is happening in all the other circuits, the first circuit only has 6 judges, a total population of 13 million people; in the ninth circuit, 28 judges, population 49 million people, over 1.4 million square miles. It is hard to serve an area that big. I urge my colleagues to pass this amendment. We need to do it for the justice of the people who live and reside and do business in the ninth judicial district. I yield the floor and I reserve the balance of my time.

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

Mr. BURNS. Mr. President, I send to the desk a second-degree amendment to amendment No. 3530 and ask for its immediate consideration.

Mr. BURNS

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

Mr. BURNS

Mr. BURNS. How much time does the Senator have?

Mr. BURNS. I thank the Chair. It has been my pleasure to serve on the Small Business Committee ever since I came to the Senate, and under the chairmanship of both Senator Bond and Senator Bumpers. I know of the hours they put in on this and the leadership they display. They have been trying to do this for quite a while. Finally, we have a product on the floor that I think will work. Mr. President, I rise today in support of S. 942, the Small Business Regulatory Fairness Act. This is a bill that we have worked on in the Small Business Committee, with the help of many White House Committee on Small Business delegates. It is a bill that will give much needed relief to small businesses all across the country. And the end result will benefit us all. Small businesses are responsible for the vast majority of new jobs created in the last year, in spite of everything the Government is doing to hinder that growth. In Montana, where 98 percent of our businesses are considered small business, not 1 day goes by that I do not hear ``Get the Government off our backs and we would be creating more jobs,'' or ``If you would just get out of the way, more folks would be starting new businesses and our economy would be improving.'' Mr. President, from the awesome amount of paperwork that various Government agencies require to the fines that threaten small businesses if they do not comply with the thousands of regulations imposed on them, it is no wonder that some folks are discouraged from starting or growing their business. This bill will ease some of that burden. It makes it easier for small businesses to comply with regulations by letting them know what is expected from them--in clear, simple language. And if the rule is not clear or not spelled out specifically in a compliance guide, the small business cannot be penalized. It is just one way of making the Government agency more responsible--and of making compliance easier on our small businesses. Who can argue with that? It also directs the SBA to set up regional ombudsmen for small business and agriculture, giving folks a place to go to voice their complaints about unfair enforcement of regulations--without fear of retribution. This provides a check on the agency, forcing their inspectors to be accountable for their actions. Small businesses can critique the inspectors and Government lawyers, and we then get an idea of how responsive different agencies are to small business. There are a lot of ways we can help small business today. The White House Conference on Small Business produced 60 recommendations of what we can do to help. In nearly every category, dealing with regulations was mentioned. There is much more to be done to curtail unnecessary regulations and reduce the presence of Government in our lives--but this is just a first step. We will always have rules and regulations--that is just the way our Government works. And no doubt we need some of those. But let us make it easy to understand and easy to comply. Let us give those being regulated a fair chance. I would encourage my colleagues to support this important legislation on Tuesday by voting for its passage. I know Montana's small businesses are counting on this and I would imagine that small businesses all across the country, as well as their customers, would be eager to see this passed. Mr. President, we hear stories in our home States--we all have them-- when we go home and sit down with the people who are providing the biggest percentage of new jobs in this country, which is the small business community, the entrepreneurs just starting out, and they are expanding. We know how important this is. They are also saying that we have to get Government off of their backs. If we just get out of the way, more folks would go into business and they would start expanding the economy as much as they can, just on a new idea, making some things happen. Government rules and regulations are always going to exist in some areas of business and in other areas of our life, but now we will have a part of Government that is actually going to be an advocate for small business. This will put a person in the region to whom a small business can go and take the problem they are having with a regulatory agency-- someone to hear them out and who they could have a relationship with, so that they might solve their problems. Mr. President, we had a big problem in the State of Montana in the wood products industry, which is a big industry. We have some post and pole people who treated fencepost or treated lumber. They used some chemicals that, yes, are highly toxic. Rather than working with the people to get them in compliance, the EPA just went and found the violations and made the fines so big, and the cleanup so expensive, that they all went broke. I can cite four in the State of Montana alone. Here is the bad part about it. I forget the chemical they dip the posts into now, but there was one full 55-gallon drum and one half- full of creosote. What they did is, after they took the soil, they hired a person from Portland with an incinerator to burn the soil, and a soil handler from Florida to bring it clear to Montana, and we have people in Montana that can do the same thing. That was all charged against the owner. Then they left this big hole in the ground. They did not finish burning their soil. They gave up on that. They actually opened up the 55-gallon drum and poured what was left in it back into the hole, contaminating the whole area. Now, this is our Government at work. And then they told the poor guy, ``Fence that off, would you?'' He put up a 36-inch web around it without any barb on top of it. We can cite time after time after time examples of regulators or regulation enforcers that set up their own little fiefdom, and they are king for a day. And we hope this piece of legislation, which all of us had a hand in developing, will do something about that. I am really happy that our good friend from Oklahoma is pursuing the way we write our regulations, the way we write our administrative rules, after the piece of legislation has been introduced. I have been preaching on that for a long time. Those rules and regulations should come back to the committee of jurisdiction, if nothing else, to be reviewed so that they do reflect the intent of the law and the intent that we had. I congratulate my chairman and ranking member on this committee because I think it is a humongous step in the right direction. I yield the floor.

Mr. BURNS

Mr. BURNS. Mr. President, I yield the floor. Modification of Amendment No. 3493

Mr. BURNS

Mr. BURNS. If the Senator will yield, this Senator has three to offer before 8 o'clock.

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

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

Mr. BURNS. Mr. President, I also ask unanimous consent the present amendment be set aside.

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

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

Mr. BURNS. Mr. President, I ask unanimous consent the present amendment be set aside.

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