John Chafee

Mr. CHAFEE

Mr. CHAFEE. Mr. President, I was interested in the presentation of the Senator from Utah where he stressed I should be impressed that 47 States, or whatever it is, asked Congress to pass this amendment including the legislature in my own State; I should be impressed by that. It comes from the same Senator who in his own amendment has eliminated the State's power to pass laws in connection with the desecration of the flag. On one hand, the States are people who should be listened to with great caution and respect; on the other hand, he eliminates them from his amendment 24 hours before it comes up for a vote. Now, Mr. President, since we are quoting from the Supreme Court, and I might say he quoted extensively from the decision involving Texas versus Johnson. Johnson has gained greater fame from burning the flag than he ever would if he stood at attention and saluted it. That, seems to me, Mr. President, is the reason people burn the flag. You make it against the law and they will be out there to a far greater extent than they are now because that will get them attention. That is what they want. These are misguided individuals. Most of all, they want the police to come and seize them and drag them off to jail because they burnt the flag. Mr. Gregory Johnson is now famous, far more famous than if the situation had just been ignored. This is what the Supreme Court said: The way to preserve the flag's special role is not to punish those who feel differently about these matters, it is to persuade them that they are wrong. You courageous self- reliant men with confidence in the power of free and fearless reasoning applied through the processes of popular government, no danger flowing from speech can be deemed clear and present unless the incidence of the evil is so imminent that it may fall before there is an opportunity for full discussion. We can imagine no more appropriate response to burning a flag than waving one's own, no better way to counter a flag burner's message than by saluting the flag that burns, no surer means of preserving the dignity even of the flag that is burned, than by, as one witness here did, [referring back to the situation in Texas] according to the remains a respectful burial. We do not desecrate the flag by punishing its desecration, for in doing so we dilute the freedom that this cherished emblem represents. We have not discussed here today that the whole reason this is before us is that the Supreme Court of the United States has said this is a limitation on the freedom of expression when you pass statutes such as suggested by the Senator from Utah. So instead of expanding our freedoms, it is a limitation of our freedom. I think it should be rejected. I certainly hope it is.

Mr. CHAFEE. When the time comes. Let me finish my statement. What the Senator from Utah is proposing is to cover a situation which has rarely occurred in our country. He himself has said 45 instances of media coverage, and the truth of the matter is, the only time anybody burns a flag is when there is media coverage, except for these Boy Scouts, and he has assured me he is not going to send them all to jail if they follow the precepts of the handbook where it says burn the flag, if you do it, it is perfectly all right, according to the handbook. I do not know what the law of the Senator from Utah is going to do to them. But if they do it in a dignified way, it is all right. What is going to happen, as clear as we are here today, is you pass this statute and how is somebody going to get attention? They are going to burn the flag with hopes that the police will come along and they will be dragged away in chains with handcuffs, with television all over the place. Mr. President, this is serious business what the Senator from Utah is doing. What he is doing is adding an amendment to the Constitution that has served us for 206 years, and in the course of those 206 years, there have been 26 amendments. And, indeed, only 24 of them are still there because one passed and was subsequently repealed by another amendment, the so-called prohibition amendment. The 18th amendment was subsequently repealed. What are those amendments about? Are they about how to sing the Star Spangled Banner, or about burning flags? The amendments are about the greatest things our country stands for. They are about freedoms--the freedom to speak and the freedom to publish and the freedom to worship and the freedom from unlawful search and seizure and the freedom from slavery and the right to vote--rights and freedoms. They are not about prohibitions. They are about rights. The right to vote, the right for women to vote, the right for those 18 years and older to vote. They are what this country is all about. In my State, when we built the State House at the turn of the century, those who built it inscribed around the rotunda the following words in Latin. The translation is: ``Rare felicity of the times when it is permitted to think as you like and to say what you think.'' That all comes from the Constitution of the United States. Here we are trivializing the Constitution. We are adding words about desecration of the flag, as though that is a real problem in this country, in which 45 incidents have occurred over the past 6 years. I just think it is a tragedy that we are spending time taking this great document, which is revered all over the world, not just in the United States, and trivializing by doing something about what is going to happen to the flag. The second point is the one I have made about not only is this not a great problem, but the Senator from Utah has dealt with this subject for 6 years. The last vote we had on it was 5 years ago in 1990, and it has not come up since. But the Senator has been working on it, seeking passage, dealing with it, and now, 24 hours before we vote, he has changed it. I would like to ask the Senator from Utah, what prompts him, when he has been so deeply concerned with this matter, that suddenly he comes in at the last moment and changes it? I ask if there have been hearings in his committee on the language as he is now presenting it.

Mr. CHAFEE. I will give you your opportunity.

Mr. CHAFEE. And overstatements are not rare in this Chamber, I might say. Here we are mustering the full power of the Federal Government to go after something that has occurred 45 times in 6 years and, indeed, in 1 year there were three occasions.

Mr. CHAFEE. Mr. President, to label this amendment as important is one of the great overstatements I have heard around this place.

Mr. CHAFEE. Now, we have a further problem. Up in my State, the good ladies of 100 years ago did a magnificent hooked rug. It is on display. And it has a flag on it, American flag. That was made as a rug to walk on. Now, if the good ladies of Providence, RI, should do a hooked rug now and put it down and we walked on it, what would we do? Would they go to jail?

Mr. CHAFEE. Let us assume the bearded protester----

Mr. CHAFEE. In the Boy Scout handbook, of which there has been 35 million, it says regarding the flag: ``If it is torn or worn beyond repair, destroy it in a dignified way, preferably by burning.'' We have a pretty serious problem here, I suspect, if these Boy Scouts are burning the flag. What would we do? Would we send them to jail?

Mr. CHAFEE. Let me take a look at the Boy Scout handbook here.

Mr. CHAFEE. Now, let me----

Mr. CHAFEE. Now, this burning of the flag, I assume that that is looked on as a very troublesome procedure.

Mr. CHAFEE. In 1993, as I see it, from the Senator's own statistics, there were three examples of a burning of the flag.

Mr. CHAFEE. It is my understanding that the amendment that the Senator presently has--there have been some changes in it, as I understand--but the amendment that he hopes for us to vote on tomorrow will be one that will permit the enactment of a statute forbidding the desecration of the flag? Is that correct?

Mr. CHAFEE. Mr. President, the underlying matter before us is a proposed constitutional amendment. I see the principal sponsor of that amendment on the floor, the senior Senator from Utah, and I have some questions I would like to ask the Senator, if he would be good enough to respond to them. My first question is, as I understand the amendment that he has now finally come up with after some changes, but I understand the amendment presently before us provides that a Federal statute can pass forbidding the desecration of the flag. Am I correct in that, I would like to ask the Senator from Utah?

Mr. CHAFEE. No, your chance will come.

Mr. CHAFEE

Mr. CHAFEE. I wonder if the majority leader has any indication, if this is disposed of this evening, what would happen tomorrow?

Mr. CHAFEE. Mr. President, I would like to ask the Senator from Arkansas one more question. I understand that these substantial amounts will be made by the companies that they would not otherwise make, if we corrected this. My question is: But, if we correct it sometime in the future, then is there a refund in some type that occurs? Does it undo itself, or everything is just prospective?

Mr. CHAFEE. Mr. President, I want to take a moment to discuss the pending amendment. This is really a very simple issue. Under the Uruguay Round the nations agreed to boost protection of patents significantly. This was an historic step. Indeed, this was the first time that in these multilateral trade agreements such as this, the GATT, we became involved with so-called intellectual property. In order to implement the provisions of the commitment to increase the protection for patents, the Congress changed the U.S. patent law from 17 years from approval to 20 years from filing date. This was a change to conform with GATT. To be fair to existing patent holders, Congress gave those existing patent holders the option of taking the longer term. As a result, those holding patents as of June 1985 received an extension of up to 3 years. However, granting this extension affected generic drug manufacturers who had been preparing to go to market after the original patents expired. To be fair to them, too, Congress made a compromise: manufacturers who had already made a substantial investment preparing to go into the market, would be allowed to proceed--but they would be required to pay a royalty to the holder of the patents. This was a carefully worked out compromise. This transition was made available to all manufacturers, not just generic manufacturers of drugs. There are generic manufacturers of blue jeans and every other patent. Wherever there is a patent involved someone is waiting for the patent to expire and then come forward with their own product. The product is called a generic product--not just a generic drug, but generic blue jeans, or whatever it might be. However, Congress made an error. It is not the first error Congress has ever made, but it was a costly one. We failed to consider a conforming amendment to the patent provisions of the Food, Drug and Cosmetic Act, which Senator Pryor previously alluded to. The consequence of this oversight is that one group of generic manufacturers--in other words, those coming on with a substitute product--had been denied the benefits of this transition provision. These were the generic pharmaceutical manufacturers. So, while the manufacturers, that is the manufacturers who had the patent of these branded pharmaceutical products, got an extra 3 years, the generic drug manufacturers were cut out altogether from transition remedies--from doing anything. This oversight, if left uncorrected, I must say, is a wonderful windfall for the pharmaceutical manufacturers who are protected by it, who got this windfall which was never planned for. This windfall is in the area of billions of dollars--not millions, but billions. So, quite understandably, they are very enthusiastic to prevent anything from happening around here, to prevent the Pryor amendment from going into effect. Obviously, others can give illustrations of this. What will be the effect of the passage of the Chafee-Brown-Pryor-Byrd amendment? First, it will level the playing field by making the GATT transition provision available to generic drug manufacturers like it is to generic blue jeans manufacturers, or whoever it might be. This is what we intended. Second, it will stop the unintended, and therefore unfair, windfall. And, third, it will save consumers, insurers, and, I might say, the Government--because the Government will benefit greatly from getting their Medicaid prescription drugs at a far lower price than otherwise would be true. There are two counterpoints that opponents of this will make. Some have warned that this amendment would negate or otherwise affect the hard-won gains that came about through GATT and the intellectual property protections. That is a red herring. The STR, the Special Trade Representative, has assured us that our amendment will not in any way interfere with the GATT intellectual property protection rights. In fact, the USTR supports this amendment, for they say the conforming amendment--namely, the Pryor effort--should have been included in the GATT bill but was overlooked inadvertently. Now, as to the argument that our amendment would upset the delicate balance of the Hatch-Waxman Act, that also is a red herring. This is not about Hatch-Waxman; this is about GATT. Officials of the Food and Drug Administration have assured us that our amendment absolutely would not disturb the so-called Hatch-Waxman Act. Let me say, if this were interfering with GATT in some way, the intellectual property provisions, I would not be for this amendment. This is what we might call a ``good Government'' amendment. It seeks to close a loophole which was unintentionally created. We made a mistake, and now we are trying to correct it. Does it have any support outside of those of us here? Certainly a broad coalition of senior citizens and consumer groups support it. Furthermore, it is the right thing to do. Occasionally we do the right thing around here. I certainly hope that this amendment of the Senator from Utah, to send this back, and the Senator from New Hampshire, would not prevail. I hope it will not prevail because, if it does prevail, that does in the Pryor effort here. Could I ask the Senator from Arkansas, does this amendment provide for a date that the hearing must be completed?

Mr. CHAFEE. I have a question for the distinguished Senator from New Hampshire. He mentioned the sending of his bill back to committee for a study. I guess the Senator from New Hampshire supported that in the end, reluctantly. My question is this: Did that amendment, that sent the Senator's bill back to committee, have a date at which the committee must report back? As I recall, it did. I may be mistaken.

Mr. CHAFEE. I certainly would abide by whatever the Senator says, and if he wishes to correct it later, that is fine. But, as I recall, when that was sent, Senator Smith's bill which came up here, say, a month ago, when that was sent back to committee, that was sent back with a time limit to it, a definite period. Whether it was 17 days or 3 weeks or whatever it was, I am not sure. But I remember, to the best of my recollection, there was a time certain. Yet, in this case, the Senator from New Hampshire, in his amendment, has not provided for a date certain. What does the Senator from Arkansas suggest on that? Would this be more palatable if there was a time limit?

Mr. CHAFEE. I would ask the Senator from Arkansas another question. It seems to me that this is an odd provision, in that it is referred to the Judiciary Committee, yet the jurisdiction of the Food and Drug Administration is in the Labor Committee.

Mr. CHAFEE. So, why is this being sent to the Judiciary Committee?

Mr. CHAFEE. If you want time, you can have time after I finish. We have a letter from Mickey Kantor, U.S. Trade Representative, September 25, 1995: The extension of the section 1534(c)--that is what we are doing here to pharmaceutical property products--would not undermine ongoing U.S. efforts to seek high levels of intellectual property protection around the world. So there is no problem here with patents. That does not have anything to do with it. The fact of the matter is that this reference, if indeed it should be made--I do not think it should--but if it should, it should go to one of two places: The Finance Committee, which deals with trade, or the Labor Committee, which deals with FDA. I would be far happier to see it go there than to the place suggested.

Mr. CHAFEE. I would certainly like to hear the Senator make that explanation, if he might.

Mr. CHAFEE. I understand that. But now my question is: But, let us assume [[Page S 18202]] that this is referred back to this committee--the wrong committee, as it turns out, but nonetheless it is referred back--nothing happens, and finally let us say in March we straighten out the law, then retroactively is there some compensation that takes place?