William Cohen

Mr. COHEN

Mr. COHEN. Senator Snowe and I would like to bring to the attention of the chairman an important Fossil Energy Program within the Department of Energy. The Department has initiated a demonstration project to repower Pennsylvania Electric's Warren Station utilizing externally fired combined cycle technology. The purpose of this program is to develop a commercially viable use for this technology. A 20- member consortium, consisting of utilities, private industry, State energy organization, foreign organizations, and the Department's Morgantown Energy Technology Center, has spent 8 years and $34 million to develop the EFCC technology. This technology is based on a ceramic heat exchanger that can dramatically increase the amount of electricity generated from burning coal. This ceramic technology produces 20 percent more electricity per pound of coal than conventional steam power plants and, as a result, it can significantly reduce pollution and the cost of power. It could be used to update aging power plants across the United States. According to the Washington Post, this technology ``appears to place the United States in the forefront in developing high-temperature ceramics'' for industrial applications, overtaking international competitors.

Mr. COHEN. We thank the distinguished chairman for his assistance on this important matter. twin cities research center

Mr. COHEN

Mr. COHEN. Mr. President, I have lamented on a number of occasions the erosion of civility in our public discourse. This is a trend that has had a negative impact on our politics and on the relationship between the government and the citizenry. The heightened level of rhetoric, the slash-and-burn tactics, and the accusations of bad faith, have made it more difficult for politicians to communicate with each other and to communicate with those we represent. It has made it more difficult for reasonable people to reach agreement and far too easy for unreasonable voices to dominate the debate. The breakdown in the tone of our discourse is symptomatic of a wider problem which many have described as a deterioration of civil society. Our civil society is the collection of public and private institutions, and accepted moral principles, that bind us together as a community of citizens. Civil society is what makes us a nation of community, rather than merely a group with common voting rights. There is abundant evidence that our civil society is fraying around the edges. People lack faith in the capacity of government to act in the interest of the people. There is a growing lack of confidence in our public schools--one of the great unifying forces in our country. Americans are less engaged in fewer communal activities than we once were. We are much more apt to stay at home to rent a video, communicate on the faceless Internet, or channel-surf on cable TV, than we are to attend a PTA meeting, march in a parade--or even join a bowling league, as one Harvard professor's study revealed. It is against this background that today we consider the constitutional amendment to prohibit desecration of the U.S. flag. The argument for protecting the flag is a weighty one: The U.S. flag is a unique symbol of our nationhood. When our troops go to battle to fight for our Nation, they march under the banner of the flag; each day when our children go to school, they pledge allegiance to the flag; when a national leader or world dignitary dies, the flag is flown at half mast; when one of our athletes wins a gold medal at the Olympic Games, the flag of the United States is raised; when a soldier or police officer dies, his or her coffin is draped with the flag; when immigrants are naturalized, they salute to the flag. In this diverse Nation, respect for the flag is a common bond that brings us together as a nation. Our common reverence for the flag is part of what makes us citizens of a country, not just individuals that happen to live in the same geographic area. There is also no denying that when the flag is burned, desecrated, despoiled, or trampled upon, the potency of the flag as a symbol is denigrated. When the flag is burned, whether by Iranian fundamentalists during the hostage crisis or by American protestors here at home, we are rightly outraged because these acts represent a direct affront to our Nation. By tolerating flag desecration, we are condoning actions that undermine the fabric of our national life. Critics of the flag amendment have reminded us that because flags owned by the Government are still protected under current law, this amendment will only restrict what individuals can do with flags that they own personally. But the flag is not a mere piece of property like a car or television, it is more than the fabric and dye and stitching that make it up. The design of the American flag and the values it represents belong to all of us; in a sense, it is community property. We the people maintain part ownership of that flag and should be able to control how our property may be treated. This is not a very radical principle. Federal law already controls what we can or cannot do with our own money. Anyone that mutilates, cuts, defaces, disfigures, or perforates a dollar bill can be fined or put in jail for 6 months. Similarly, in O'Brien versus United States the Supreme Court upheld the conviction of a protestor that burned his draft card on the ground that the Government had a substantial interest in protecting a document necessary for the efficient functioning of the selective service system. Why is our interest in protecting currency or Government documents any stronger than protecting our greatest national symbol? Opponents of the flag amendment also maintain that it trivializes the Bill of Rights by carving out an exception to the first amendment. This argument is based on the classic libertarian belief that truth can only emerge from complete freedom of expression and that the Government cannot be trusted to distinguish between acceptable and unacceptable forms of action or speech. This first amendment absolutism, however, is contrary to our constitutional tradition. The list of types of speech that may be regulated or banned by the Government according to our Supreme Court precedents is lengthy: libel, obscenity, fighting words, child pornography, deceptive advertising, inciteful speech, speech that breaches personal privacy, speech that undermines national security, nude dancing, speech by public employees, infringements of copyright, and speech on public property, to name a few. And consider how narrow the flag amendment's restriction of speech really is and how little it limits our ability to protest against the Government. Even if the amendment is enacted one could still write or say anything about the Government; one could still burn a copy of the Constitution or effigies of political leaders; indeed, one could put a picture of a flag being burned on the Internet and circulate it to millions of people across the world with the push of a button. Recall the words the protestors chanted while Gregory Lee Johnson set a flag on fire and gave rise to this entire controversy: Reagan and Mondale, which will it be? Either one means World War III. Ronald Reagan, killer of the hour, perfect example of U.S. power. America, the red, white, and blue, we spit on you, you stand for plunder, you will go under. So regardless of whether we have a flag amendment, there are a multitude of ways to heap contempt on the Government, should one choose to do so. The effect of the amendment on free expression would be negligible. But if the impact of the restriction is so minimal, why do we need to raise this issue to such a level of importance? The answer is because the flag remains the most powerful symbol capable of unifying a diverse, disparate nation. It is a centrifugal, galvanizing force in our lives--and it will remain so only as long as it is not trashed, despoiled, or debauched by those who insist that one is free to indulge in any act to give expression to his or her thoughts. I also want to take issue with the contention that our liberal tradition prohibits us from ever making substantive value judgments about what is good speech and what is not or that we must always remain indifferent or neutral with respect to the ideas and images that bombard us over the airwaves or through the media. For when freedom is defined by the absence of all restraint, then liberty descends to license and license yields to disorder and dysfunction. As someone once observed, a river without its banks is not a river, but a flood. Senator Dole touched on this theme in a speech he gave earlier this year criticizing the violent movies being produced in Hollywood these days. It isn't inconsistent with the first amendment to speak out against movies that contain dozens of shootings, or gruesome acts of violence that are then copied in real life only days after the initial screening. It isn't an act of Government censorship for politicians to criticize music containing lyrics that denigrate women, glorify cop- killers as role models, and promote racial divisiveness. Likewise, it is not Government censorship when the people amend the Constitution to prohibit one narrow, repulsive form of expression. The process of amending the Constitution does not consist of a dictatorial tyrant or imperial monarch exercising its power over enslaved subjects; rather it is the act of free people exercising their sovereign power to impose rules upon themselves. By enacting this amendment through the process set forth in article V of the Constitution, ``We the people'' will be determining that the message being expressed by those who burn the flag is not worthy of legal protection. The amendment represents a subjective, value-laden judgment by ``the people'' that our interest in preventing the damage that flag desecration inflicts upon our national character outweighs the meager contribution that flag burning makes to the advancement of knowledge and understanding of ideas. The Supreme Court balances interests in this manner in almost every constitutional case it decides. Why is it that we have no qualms about deferring to the value-judgments made by unelected jurists but we become squeamish when making such judgments through our most solemn act of self- government--amending the Constitution? I do not believe this flag amendment sets a bad precedent by carving out an exception to the first amendment or that ``the people'' will act irresponsibly by amending the Constitution in a frequent or cavalier fashion. For one thing, the Constitution, in its wisdom, makes that too difficult to do. Also, I trust the people. They understand the value of liberty. I am confident that it will be the rare occasion that the people make an exception to our general tolerance for free expression by targeting a form of expressive activity for special treatment. And I am confident that our national character will be improved, not weakened, by the protection of our unique symbol of nationhood. I agree with Justice Stevens' opinion in Texas versus Johnson. He said: The value of the flag as a symbol cannot be measured. Even so, I have no doubt that the interest in preserving that value for the future is both significant and legitimate. Similarly, in my considered judgment, sanctioning the public desecration of the flag will tarnish its value, both those who cherish the ideas for which it waves and for those who desire to don the robes of martyrdom by burning it. That tarnish is not justified by the trivial burden on free expression occasioned by requiring an available, alternative mode of expression, including words critical of the flag, be employed. So I support this resolution to send the flag protection amendment to the States for ratification. And I urge my colleagues to support it as well.

Mr. COHEN

Mr. COHEN. Mr. President, I have lamented on a number of occasions the erosion of civility in our public discourse. This is a trend that has had a negative impact on our politics and on the relationship between the Government and the citizenry. The heightened level of rhetoric, the slash-and-burn tactics, and the accusations of bad faith, have made it more difficult for politicians to communicate with each other and to communicate with those we represent. It has made it more difficult for reasonable people to reach agreement and far too easy for unreasonable voices to dominate the debate. The breakdown in the tone of our discourse is symptomatic of a wider problem which many have described as a deterioration of civil society. Our civil society is the collection of public and private institutions, and accepted moral principles, that bind us together as a community of citizens. Civil society is what makes us a nation of community, rather than merely a group with common voting rights. There is abundant evidence that our civil society is fraying around the edges. People lack faith in the capacity of government to act in the interest of the people. There is a growing lack of confidence in our public schools--one of the great unifying forces in our country. Americans are less engaged in fewer communal activities than we once were. We are much more apt to stay at home to rent a video, communicate on the faceless Internet, or channel-surf on cable TV, than we are to attend a PTA meeting, march in a parade--or even join a bowling league, as one Harvard professor's study revealed. It is against this background that today we consider the constitutional amendment to prohibit desecration of the U.S. flag. The argument for protecting the flag is a weighty one: The U.S. flag is a unique symbol of our nationhood. When our troops go to battle to fight for our Nation, they march under the banner of the flag; each day when our children go to school, they pledge allegiance to the flag; when a national leader or world dignitary dies, the flag is flown at half mast; when one of our athletes wins a gold medal at the Olympic Games, the flag of the United States is raised; when a soldier or police officer dies, his or her coffin is draped with the flag; when immigrants are naturalized, they salute to the flag. In this diverse Nation, respect for the flag is a common bond that brings us together as a nation. Our common reverence for the flag is part of what makes us citizens of a country, not just individuals that happen to live in the same geographic area. There is also no denying that when the flag is burned, desecrated, despoiled, or trampled upon, the potency of the flag as a symbol is denigrated. When the flag is burned, whether by Iranian fundamentalists during the hostage crisis or by American protestors here at home, we are rightly outraged because these acts represent a direct affront to our Nation. By tolerating flag desecration, we are condoning actions that undermine the fabric of our national life. Critics of the flag amendment have reminded us that because flags owned by the Government are still protected under current law, this amendment will only restrict what individuals can do with flags that they own personally. But the flag is not a mere piece of property like a car or television, it is more than the fabric and dye and stitching that make it up. The design of the American flag and the values it represents belong to all of us; in a sense, it is community property. ``We the people'' maintain part ownership of that flag and should be able to control how our property may be treated. This is not a very radical principle. Federal law already controls what we can or cannot do with our own money. Anyone that ``mutilates, cuts, defaces, disfigures, or perforates'' a dollar bill can be fined or put in jail for 6 months. Similarly, in O'Brien versus United States the Supreme Court upheld the conviction of a protestor that burned his draft card on the ground that the Government had a substantial interest in protecting a document necessary for the efficient functioning of the selective service system. Why is our interest in protecting currency or Government documents any stronger than protecting our greatest national symbol? Opponents of the flag amendment also maintain that it trivializes the Bill of Rights by carving out an exception to the first amendment. This argument is based on the classic libertarian belief that truth can only emerge from complete freedom of expression and that the Government cannot be trusted to distinguish between acceptable and unacceptable forms of action or speech. This first amendment absolutism, however, is contrary to our constitutional tradition. The list of types of speech that may be regulated or banned by the Government according to our Supreme Court precedents is lengthy: libel, obscenity, fighting words, child pornography, deceptive advertising, inciteful speech, speech that breaches personal privacy, speech that undermines national security, nude dancing, speech by public employees, infringements of copyright, and speech on public property, to name a few. And consider how narrow the flag amendment's restriction of speech really is and how little it limits our ability to protest against the Government. Even if the amendment is enacted one could still write or say anything about the Government; one could still burn a copy of the Constitution or effigies of political leaders; indeed, one could put a picture of a flag being burned on the Internet and circulate it to millions of people across the world with the push of a button. Recall the words the protestors chanted while Gregory Lee Johnson set a flag on fire and gave rise to this entire controversy: ``Reagan and Mondale, which will it be? Either one means World War III. Ronald Reagan, killer of the hour, perfect example of U.S. power. America, the red, white, and blue, we spit on you, you stand for plunder, you will go under.'' So regardless of whether we have a flag amendment, there are a multitude of ways to heap contempt on the government, should one choose to do so. The effect of the amendment on free expression would be negligible. I also want to take issue with the contention that our liberal tradition prohibits us from ever making substantive value judgments about what is good speech and what is not or that we must always remain indifferent or neutral with respect to the ideas and images that bombard us over the airwaves or through the media. Senator Dole touched on this in a speech he gave earlier this year criticizing the violent movies being produced in Hollywood these days. It isn't inconsistent with the first amendment to speak out against movies that contain dozens of shootings, or gruesome acts of violence that are then copied in real life only days after the initial screening. It isn't an act of government censorship for politicians to criticize music containing lyrics that denigrate women, glorify cop killers as role models, and promote racial divisiveness. Likewise, it is not government censorship when the people amend the Constitution to prohibit one narrow, repulsive form of expression. The process of amending the Constitution does not consist of a dictatorial tyrant exercising power over enslaved subjects; rather it is the act of free people exercising their sovereign power to impose rules upon themselves. By enacting this amendment through the process set forth in article V of the Constitution, ``We the people'' will be determining that the message being expressed by those who burn the flag is not worthy of legal protection. The amendment represents a subjective, value-laden judgment by the people that our interest in preventing the damage that flag desecration inflicts upon our national character outweighs the meager contribution that flag burning makes to the advancement of knowledge and understanding of ideas. The Supreme Court balances interests in this manner in almost every constitutional case it decides. Why is it that we have no qualms about deferring to the value-judgments made by unelected jurists but we become squeamish when making such judgments through our most solemn act of self-government-- amending the Constitution? I do not believe this flag amendment sets a bad precedent by carving out an exception to the first amendment or that the people will act irresponsibly by amending the Constitution in a frequent or cavalier fashion. For one thing, the Constitution, in its wisdom, makes that too difficult to do. Also, I trust the people. They understand the value of liberty. They understand that the only way for truth to emerge is through the exchange of ideas. They understand that it is a slippery slope from government-controlled censorship to tyanny. I am confident that it will be the rare occasion that the people make an exception to our general tolerance for free expression by targeting a form of expressive activity for special treatment. And I am confident that our national character will be improved, not weakened, by the protection of our unique symbol of nationhood. I agree with Justice Stevens' opinion in Texas versus Johnson. He said: The value of the flag as a symbol cannot be measured. Even so, I have no doubt that the interest in preserving that value for the future is both significant and legitimate. Similarly, in my considered judgment, sanctioning the public desecration of the flag will tarnish its value, both those who cherish the ideas for which it waves and for those who desire to don the robes of martyrdom by burning it. That tarnish is not justified by the trivial burden on free expression occasioned by requiring an available, alternative mode of expression, including words critical of the flag, be employed. So I support this resolution to send the flag protection amendment to the States for ratification. And I urge my colleagues to support it as well.

Mr. COHEN

Mr. COHEN. Mr. President, I now ask unanimous consent that there be a period for the transaction of routine morning business.

Mr. COHEN

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

Mr. COHEN. I listened with interest to the presentation of the Senator from Colorado who is now occupying the chair. He delivered it with great passion. That passion stems from his experience of having been in the fields of Vietnam and having witnessed the kind of policy that we pursued there--in leaving, in many cases, our troops without either the military or moral support that they deserved. He spoke with great eloquence and passion, and I think his words should be given serious consideration by all of our colleagues as we deliberate and debate this issue tonight, tomorrow, and beyond. If you watch the evening newscasts, it is very clear our troops are heading into Bosnia as we speak. The anchormen are there cataloging the various vehicles that are rolling by, the numbers of troops, the feelings and sentiments of the men and women who are being sent, the reaction on the part of the citizens that they are being sent to help defend. And various commentaries being offered by military leaders who have served in the past as part of the U.N. force. It is interesting to get their different perspectives in terms of both the mission and how long it might be before we complete that mission. So our troops are in Bosnia, and we have to ask the questions: How did they get there? What will they do there? When will they leave? How will we ever measure their success? I think it is fairly clear that the road to Bosnia has been paved with good intentions and poor judgment. The road has been littered with mistakes. We can point to those in the past. I say that the early recognition on the part of a united Germany of Croatia was one of those initial mistakes. I think the new united Germany at that time was feeling its power, its diplomatic initiative, and that prodded a number of countries to follow suit too quickly in recognizing Bosnia- Herzegovina. The West fell in line to applaud its--the Germans--diplomatic initiative. When predictable war broke out, the Europeans, who were steeped in Balkan history, said it is a local issue. It is really not our problem. It is a domestic civil war. These tribes as such, these factions, have been making war for centuries. We are not going in. So the United States was not about to intervene where Europeans feared to tread. If we had any inclination to do so, if the Bush administration had any predisposition to going in to helping solve that particular war, it was discouraged from doing so by domestic politics. After all, President Bush had come off of a major victory in the Persian Gulf. He was riding very high in the polls at that time but the charges were he was too interested in foreign affairs, he had neglected domestic issues. The Nation was suffering, and therefore he should turn his gaze away from world affairs and concentrate on domestic issues. So if there were any inclination, and I am not sure there was at the time, but if there were any inclination on President Bush's part to intervene in any significant way in that war, he was discouraged from doing so. UNPROFOR, the U.N. peacekeeping force was sent in. I have spoken on this floor on a number of occasions, written articles for the Washington Post and other publications, suggesting--no, not suggesting, but declaiming, that it was an inappropriate mission for U.N. forces to send blue helmets into that region. It was inappropriate to send these brave, heroic people wearing blue helmets and flak jackets and carrying very light weapons into a region that was so mired in conflict at that time. It was an inappropriate mission for them to perform. It was a ``Mission Impossible,'' in many ways, for them to perform. But those soldiers performed that mission as well as they could, given their circumstances. But they were put directly in the midst of an ongoing war and asked to keep the peace. They were attacked without retaliation. They were taken hostage. They were humiliated by the warring factions who demanded that they pay tribute, that they give up half of their fuel, half of their food, half of their weapons, whatever it was, to gain access to the starving population that they were sent to help feed and clothe. They were tied to weapons storage sites to prevent any kind of attack by the United States or Western allies. We had the anomalous situation--and the presiding officer, Senator Brown, touched upon this--we had the anomalous situation of the military leaders on the ground saying, ``Please send in the cavalry, send in air support, attack the people who are attacking us.'' But, of course, the planes did not come and the relief did not come because they received some hot air excuses from U.N. diplomats who held the keys to the weapons. It was a so-called dual-key arrangement, which amounted to dual nonsense to those on the ground. So, we watched the situation unfold with heroic blue helmeted soldiers carrying out their mission as best they could, as atrocity was piled on atrocity, until we could no longer stand it. The final blow came when the artillery shell was launched into Sarajevo, killing 69 innocent people and wounding some 200 others. We continued to watch the evil of ethnic cleansing, and all the while the world stood by, praying for peace while the innocents were slaughtered. There were some in this Chamber, I point specifically to Senator Dole, the majority leader, who said we should lift the embargo, multilaterally if possible, unilaterally if necessary, and strike, if necessary, in order to prevent the Serbs, at that particular time, from continuing their assault upon safe havens, so-called safe havens. Lift the embargo and strike, or simply lift the embargo and let them fight. And on each occasion he was rejected. The administration said no, you cannot do this and you should not do this. Our allies have said no. The President has said no. The United Nations has said no, it would endanger the UNPROFOR forces who are on the ground. By the way, United States, you do not have any forces on the ground so do not be so quick to lift, or to lift and strike. It would endanger the UNPROFOR forces, and it would lead to more slaughter. And if we should act unilaterally, then NATO would dissolve, the U.N. forces who were there would leave, the United States would no longer have any credibility, and we would endanger the other embargoes that exist on Iraq and other countries who have engaged in, certainly, unfriendly behavior. So, under the threat that we would endanger NATO, that NATO would dissolve, nothing was done. The slaughter continued and the regions were cleansed of their undesirables. Last spring, President Clinton made a pledge to commit up to 20,000, perhaps as many as 25,000 troops to aid the extraction of U.N. forces, if it became necessary. That really was a shot across the Senate's bow at that time, saying, ``If you are going to insist on lifting the embargo over the objection of the President, over the objection of our allies, over the objection of the United Nations, then I am making a commitment as Commander in Chief. I will commit 20,000 American troops, ground forces, to help extricate the U.N. forces from that situation.'' That was a pledge he made publicly. I think, perhaps to his surprise, President Dole--strike that for the moment--Senator Dole said, ``I agree. If we have to get U.N. peacekeepers out of there in order to allow the Bosnian Moslems to defend themselves, that is a decision we will support.'' But that was the marker that was laid down. We are going to commit U.S. forces on the ground in order to extricate the peacekeepers in the event the United States unilaterally decided to lift the embargo or our allies decided the United States was no longer interested in pursuing a multilateral approach and therefore said, ``We are getting out.'' We would help get them out. So, Congress retreated. We retreated on that issue. We waited. We delayed. We debated. We did nothing, until finally we saw one atrocity too many. We would strike, and we did strike, but we would not lift. And we saw an immediate reaction once we decided to apply air power. The President sent off his chief negotiator, Secretary Holbrooke, to then hammer out a truce. Again, we hesitated. All of us in this Chamber and the other Chamber as well, we hesitated. ``Don't interfere with the President. He conducts foreign policy. Don't cut his legs off with a preemptive vote of disapproval. Allow him to conduct this effort.'' And we backed away. Once again, we deferred. We deferred because, No. 1, we assumed, or at least thought, perhaps the negotiations will fail on their own weight. Perhaps the negotiations will be unsuccessful. So why should we take action at this point on a preemptive basis to say, no matter what you arrive at in the way of negotiation, we disapprove your sending American troops to help keep that truce? So we did nothing at that time. Also, we should be very candid about it, if we had taken so-called preemptive action to assert our constitutional authority, our control over the purse strings, saying, ``No funds appropriated under this account may be expended for the deployment of ground forces in Bosnia,'' and the negotiations then failed, Congress did not want to accept the blame for it. So we backed away and we waited. Now, I mention this all by way of a preface to the debate over constitutional power. Who has it? Does the President have the undiluted, unilateral power to send troops to Bosnia, or does Congress have the power? That is a debate that cannot be resolved and will not be resolved during the course of this particular discussion. Who has the power depends upon who lays claim to it, who takes possession of it, who runs with it. I know the Senator from Colorado is an attorney, skilled in tax law and real estate law and may recall from law school days that possession is 90 percent of ownership. Who takes possession of the power and runs with it really determines who has it, ultimately. The fact is, Congress has yielded its powers to the Executive over the years. ``Don't vote to strike. Don't vote to lift. Don't vote to disapprove before the negotiations. Don't vote to disapprove after the negotiations.'' Much of what we say and do really does not matter at all, does it? Because the President has said, ``I really am not too concerned about whether you approve or disapprove, because I am going anyway. The troops are going in anyway.'' Even if the House and the Senate were to vote overwhelmingly to disapprove the sending of American troops to Bosnia, the President has already indicated they are going in any event. ``It is my prerogative. It is my power. I am going to keep the commitment I made to the NATO allies and I don't really''-- He cares, of course; I am oversimplifying. He cares, but not enough to say that he would abide by the decision. As a matter of fact, during hearings in the Armed Services Committee last week, the Secretary of Defense, Secretary Holbrooke, and the Chairman of the Joint Chiefs of Staff, were there to testify, and they were very candid about it. I specifically asked the question: In the event that Congress should pass a resolution disapproving the sending of American forces into Bosnia, the President does not intend to be bound by that decision, does he? And the answer was a very clear, ``No.'' The next question that follows onto that, of course, is, well, what if Congress fashions a resolution that imposes certain conditions, or seeks to define the mission with greater clarity to remove some of the confusion and the ambiguities that exist in the documents that were signed and negotiated in Dayton? Would the President in any way feel constrained by those conditions? And, of course, ultimately the answer is no. Secretary Perry was very clear, very direct. If he felt that any resolution passed by the Congress in any way posed a danger to our troops, he obviously would recommend to the President that he not abide by it. We got into something of a semantic dual with the Administration witnesses saying they will not ignore it, but they certainly will not abide by it. So this entire debate on what we are going to pass in the way of a resolution has no ultimate, no practical, consequence in terms of preventing the troops from going there. More will be going shortly this week. So, Mr. President, I raise these issues this evening because it is in stark contrast to what took place back during the debate on the Persian Gulf war. I have a whole sheath of notes. I was going to quote from speeches that were made at that time by my colleagues on the other side. That might seem to be a bit unfair, hitting below the intellectual belt on the eve of a vote. But I sat this afternoon reading through their statements, and I was struck by the passion with which they were delivered, by the intensity of the charges that were made at the time should President Bush ever neglect to come to Congress to get its approval. Some suggested he would be impeached, or should be impeached. In all candor, President Bush was not eager to come to the Congress. I recall on at least two, possibly three, occasions going to the White House with a group of Senators and Congressmen standing up in the East Room, and urging the President to come to Congress to get our approval. The President's advisers at that time said, ``He really does not need your approval. He has approval from the United Nations.'' I do not know how many of us have sworn allegiance to the U.N. But we, over a period of time, were able to persuade him that it was important. I think from a constitutional point of view he had the obligation to come to get our approval. But even from a political point of view, it was an imperative that he come and get our approval because you should never send American forces into war, or into the danger of a war zone in which they might be forced into war, without the solid support of the American people. And, if you put our troops in such a dangerous position, if you send them off to war without the broad support of Congress--after all, we reflect the views of our constituents--without that broad consensus, then you can anticipate what will happen. When people start to die, when they start to be flown back to Dover in their flag-draped coffins, CNN cameras will be there to capture that. And the hearts that beat so loudly and enthusiastically to do something to intervene in areas where there is not an immediate threat to our vital interests, when those hearts that had beaten so loudly see the coffins, then they switch, and they say: ``What are we doing there? Why are our young men and women dying in that region?'' And the President at that time needs to have the support of the Congress to say, no, once we commit our troops to a region, we have to stand behind them. And the worst thing you can do to American credibility--once you send them into battle and the casualties start to mount--is to leave, to quit and leave before the mission is completed. That will do more to undermine America's credibility as a world power, as a superpower, as a reliable ally, than anything we could possibly do. So that is the reason it is important, it is critical, for a President to build the support for the deployment prior to making the decision--not the inverse, not putting the troops there first and then coming back and getting support. You have to build the support, give the reasons, persuade the American people that it is our solemn duty and responsibility to take action. And when people start dying, when sons and daughters start dying, we are still going to carry through on the mission. If he does not do that, then he is going to be naked unto his enemies, because the fact of the matter is, unless you have Congress on record in support of such action, when the public turns Congress will be in full pursuit. And that will not bring credit to this institution. It will not bring credit to the United States. That is why I urged at that time President Bush to come to the Congress. He did so, and he was able by a very thin margin to persuade the Senate and the House--a larger margin in the House but a very thin margin here in the Senate--that it was in our national security interest to see to it that Saddam Hussein did not remain in Kuwait, and that he did not stand astride the oil fields of the Middle East and threaten to go all the way to Riyadh in Saudi Arabia. We talked about the implications of a tyrant, a dictator of his magnitude, standing astride the oil fields and what it would mean to international stability. We talked about his having biological weapons, chemical weapons, and, yes, even a nuclear capability and the possibility of developing intercontinental ballistic missiles, ICBM's. And still we were only able to persuade a few Members on the other side that it was important that he be removed from Kuwait by force. I mention all of that tonight because the mood has changed, and the rhetoric has changed. Suddenly we see a support coming forth for the President of the United States on a bipartisan basis thanks to the leadership of Senator Dole, Senator Lieberman, and others--Senator McCain. It was not a bipartisanship that was shared during the Persian Gulf war even though there was a much greater identifiable national security interest there than there is in Bosnia. This is much closer to a humanitarian interest and a potential national security interest. But it is hardly of the magnitude and the immediacy as posed by the Persian Gulf war. So what do we do at this point? They are over there. More will be there later this week. What we have to do is to lend our support to the troops. We are not going to undercut them at this point as they are going into a very dangerous mission. We intend to support them but to do so in a way that makes it clear why they are going, what they will do, and when they and we will know that it is time to come home. So we talk about exit strategies--code word, ``exit strategy.'' Basically it means defining what the mission is; defining the mission so you can measure success, so you can say at the end of their tour of duty that the commitment they made was exactly worth the price they are being asked to pay in order to achieve a certain identifiable goal. There is some confusion about this. And that is why this debate is important. That is why it is important that we pass a resolution being as definitive as we can, even if the President is going to ignore it. Whatever we say, it is important that we try to define what we believe the application is, and should be. Secretary Warren Christopher made a statement while in Dayton, and he indicated--at least to me the statement indicated--that the mission was to ``assure the continuity of the single state of Bosnia-Herzegovina, with effective federal institutions and full respect of its sovereignty by its neighbors.'' Mr. President, no such state has ever existed. What he was saying is that we are about to build a nation upon the ashes of a failed nation. No such nation ever existed for any period of time. Almost simultaneous with its recognition as a separate state, war broke out. There has been no single separate state with effective federal institutions whose sovereignty is respected by all neighbors on all sides. So is this going to be our mission? We raise this issue. The answer is no. That is not our mission. That is nation building, but nation building is not something we are supposed to be sending our troops to do. So there is to be no nation building. That apparently is clear. There will be no resettlement of refugees under the aegis of American Forces. That is not going to be our task. There will be no organization or monitoring of elections. That is not our task. In fact, there will be no hunt for war criminals. You may recall that President Clinton indicated he thought those who have been charged with committing atrocities should be brought to justice. In fact, he declared they would be brought to justice--Karadzic, Mladic, to name two. Are we going to hunt them down? Well, not exactly. If they happen to wander into the area of Tuzla or the areas that we will be patrolling, if we happen to stumble across them in that region, then obviously we can grab and apprehend them and bring them to justice. But that is not going to be our mission. We are not going to hunt down war criminals. And so that also has to be excluded as part of the mission of our young men and women. There are side agreements, annexes, which have caused me some concern and some need to seek clarification. Apparently a part of our effort, contained in Annex 1-B, has to do with something called build-down. We are going to seek an arms build-down in the region. Now, I have taken issue with this publicly because it is a complete misuse of the term ``build-down.'' Build-down was a phrase that was coined back in 1983 referring to a proposal Senator Nunn and I developed. Beginning with an article I wrote for The Washington Post January, 1983, that talked about how we could force reductions in nuclear forces as we modernized them to make them more survivable, more mobile. We needed to have a more stable relationship with the Soviet Union, and therefore we wanted to get rid of these fixed, big targets that they had and we had. And one way to do that was to have more mobility and fewer numbers, and so we formulated a concept saying, for every one new missile we put into our inventory, we take two old ones out. And that is where the phrase ``build-down'' came from. Well, we are not really seeking to put new modern weapons into the region and build them down on a 2-for-1 basis. That is the phrase that has been used. We will use it for convenience sake, but it has no relationship to the actual reality of what we are seeking to do. What we are seeking to do is have the parties in the region reduce their arms. Now, if you or I, Mr. President, were negotiating an arms control treaty with any of the parties involved that directly affected our security, we would never sign this agreement. We would be run out of office on a rail were we to sign such an agreement, because in essence it relies not upon verification, not upon independent assessments but upon the declarations of the parties. We are going to rely upon the Serbs to tell us how many weapons they have and where they are, and the Croatians and the Moslems, all to make a good-faith statement of the weapons they have in their inventory, and then we will see if we cannot help to negotiate a relative builddown, arms reduction to equal or semi-equal levels. We have asked people in the business of making these kinds of judgments--former Secretary of Defense James Schlesinger, former National Security Council Adviser Brent Scowcroft, former Defense Under Secretary Paul Wolfowitz--would you trust any of these individuals to declare their inventory, would you rely upon that? Brent Scowcroft said he would not trust any of them. I do not know how many here would trust any of them. The history is not replete with accurate assessments and declarations made by any of the individuals involved, any of the leaders, any of the troops. Yugoslavia, the former Yugoslavia, in fact, is renowned for having hundreds, if not thousands, of underground caves and caches where thousands of weapons are stored. So now they are going to say, we have them all stored in X, Y and Z and you can go in and take a head count for yourself and we will agree to build down. Very few people believe that is going to be possible. So the next question is, well, if we cannot really guarantee that there is going to be an arms reduction that will result in some sort of military equilibrium, then we have an obligation to see to it that the Bosnian Moslems are put in a position that, when we leave, they will be capable of defending themselves. Well, that means we are going to arm them in the alternative. What the resolution of Senator Dole, Senator McCain, Senator Lieberman, and others says is we really have that wrong. If you are talking about an exit strategy, the best we can hope to do is maintain a truce, a cease-fire for a year--I will talk about the year's timeframe in just a moment. That is the best we can hope to do. And during that time, we have to see to it that the Moslems are going to be in a position to defend themselves when we leave, if war should break out. Otherwise, we cannot declare that we have been successful in our mission. If I had my druthers on this, I would do it in reverse. I would say, let us put the parties in a relative state of equilibrium now, let us build up the Bosnian forces now and then see if we can get them to agree to reduce to roughly equal levels and then leave. At least you would have a real incentive at that particular point for everybody to negotiate in good faith. Right now, we know from listening to the administration and to others that the Bosnian Serbs do not want us to arm the Moslems. The Croatians do not want us to arm the Moslems. Our NATO allies do not want us to arm the Moslems. Article after article is now being written: Do not arm the Moslems; they have plenty. And, by the way, you do not want to upset the stability that has been achieved. That is one of the areas that we have to remove in terms of our policy. Are we going to use fig leaf phrases to hide our naked ambiguities? Is that what we are about? Saying, well, we have this commitment on the side and a lot of opposition to it, so let us put it out there. In the event we do not get the arms reduction, we will see to it they are able to defend themselves. Well, how and who? Who is going to provide the weapons? Under what circumstances, under whose aegis? Are we really fooling anyone? I quoted from a soul singer recently: Who is zooming who? Who are we zooming when we say we are totally neutral on this mission, that we are evenhanded and neutral and not favoring one side or the other? We ought to be up front about it. I know that causes concern for many, saying if we in fact are going over to help make sure the Bosnian Moslems can defend themselves, when we leave we are putting ourselves in danger. That may be the case. That may be the case. But I would submit to you, Mr. President, and to my colleagues, leaving this in a state of suspended ambiguity also puts our troops in danger. We have to be very clear of what we are about. And so the resolution that will be offered tomorrow will in fact seek to define that our goal is to make sure that at the end of this period of time, be it 12 months or longer or less, when we leave, the Moslems will be in a position to at least be on a relatively equal playing field. Now, is it going to be 12 months or not? Our colleague, Senator Warner, asked a very important question during the hearings last week. He suggested to Secretary Perry that he was troubled by the 12-month timeframe; there seemed to be some political overtones to that. Let me say here, as I said before during the hearings, not for a moment do I think that President Clinton made the decision to send troops into Bosnia for any political purpose. There is absolutely no political benefit that I can perceive that will come from that decision. There is not much of an up side, as we say in politics, from that kind of decision. A lot of down side to it. And so he is taking a very big risk. He is exercising what he believes to be leadership in the correct direction. We can challenge that or question that, but he is exercising leadership coming from the Oval Office. And so I do not for a moment question his motivation. I think he is doing it because he thinks it is the right thing to do, which is not to say there will not be political implications and overtones come next September and October. It is an election year. Hopefully--and we are going to pray on this and hope on this and be prepared for this--but hopefully we will never have a major confrontation between any of the major parties and U.S. troops. It would be an act of folly on their part in terms of the firepower we can bear. But that is not the kind of conflict we can anticipate. If there are going to be any attacks launched against the NATO forces, U.S. troops in particular--and we assume there will be efforts to try to see how thin or wide our patience is going to be--they will come in the form of terrorist attacks, they will come in the form of landmines, they will come in the form of car bombs like we saw in Beirut, they will come in the form of a sniper's bullet. Those are the kinds of things that we can anticipate will take place. Should we start to suffer significant casualties between now and next September or October, then obviously the President will be under pressure to pull the troops out. So I raised the issue with Secretary Perry. And to his credit, he was absolutely direct. He did not try to circumvent and he did not try to hedge and he did not fudge or try to engage in any kind of obfuscation. He simply responded to my question. I said: Is it unreasonable for me to assume that come next October a tranche of 2,500 troops will be coming home? He said: Not at all. In fact, they intend to start bringing the troops home next October, November, and December. So, really, it is not a truly 12-month mission, it is going to be, at least partially, a 9-month mission. I raised the 9 months because Secretary Perry said in response to Senator Warner: ``Nine or ten months would have been a time one could have been quite suspicious about. But let me assure you that the question never came to me, it was never raised to me by the President, of lowering this time from 12 down to 9 or 10 months.'' So, now at least we understand the troops will be coming home in September or October or certainly by November or December. I say that. It is a reality. It does not question the President's motivation in sending them in. But it raises the issue, if we are really planning on that kind of a strategy of getting them out starting in September or October, then that really does accelerate the timeframe in terms of what we have to do in order to complete the mission. So we have to be very clear on what we are seeking to do. If you ask any other U.N. commander who has been in that region and say we will be out of there in 12 months, not to mention 9 months, they will shake their head and say, ``No, no.'' The President of France said that we will be there for 20 years. A Canadian commander who has been there as part of the UNPROFOR forces has said that our grandchildren will be there, if we really are serious about carrying out a mission to help build a nation. But, of course, that is not what we are going to do. We are simply going to maintain a cease-fire to keep the warring parties apart for a period of 9 months-plus. So, Mr. President, I will not take any longer this evening to discuss this issue. It is getting late. It is not much of an audience that is going to be influenced by whatever I say this evening. But I do think it is important to try to spell out what we believe to be the goal of our forces there, that we make it as clear to the American people as we can, so that if things go awry, if things do not work out as the administration hopes and we pray they work out, that we will at least have defined what we believe the mission to have been and, hopefully, shape the administration's thought process on this so it does not get expanded. We are worried about mission creep, that once we get there, once an incident starts to take place, once bullets start flying, once there is an action and reaction, once someone is attacked and we respond, that we do not start engaging in mission creep and start to indulge ourselves with the added burdens that will come about under that kind of pressure. The Chinese leader Mao said, ``Power comes out of the end of a gun barrel.'' Power in this country does not come at the end of a gun barrel; it comes at the end of Pennsylvania Avenue and Capitol Hill. Power, as I suggested before, belongs to whomever claims it and exercises it. Congress has chosen not to claim the power of deciding when to deploy American forces when our Nation is not under attack and when our vital national interests are not immediately at stake. So, we are where we are because we were not willing to risk the consequences of action. We have deferred, we have debated, we have waited, we have talked, and we have let the President take us to where we are today. So our duty, as I see it, is now to define the role that our men and women must now play. Mr. President, I yield the floor.

Mr. COHEN

Mr. COHEN. Mr. President, I ask unanimous consent that the Foreign Relations Committee be discharged from further consideration of H.R. 2606, involving the use of funds for troops in Bosnia, and that the Senate now turn to its immediate consideration, with no amendments in order to the bill or motions to commit or recommit.

Mr. COHEN. Mr. President, I further ask unanimous consent that the bill be advanced to third reading and that final passage occur at 12:30 p.m., on Wednesday, December 13, with paragraph 4 of rule XII being waived.

Mr. COHEN. Mr. President, I further ask unanimous consent that at 9 a.m., Wednesday, H.R. 2606 be immediately laid aside, that the Senate proceed to a Senate concurrent resolution to be submitted by Senators Hutchison, Inhofe, and others.

Mr. COHEN

Mr. COHEN. Mr. President, I ask unanimous consent that when the Senate completes its business today, it stand in adjournment until the hour of 9 a.m., Wednesday, December 13; that following the prayer, the Journal of proceedings be deemed approved to date, no resolutions come over under the rule, that the call of the calendar be dispensed with, the morning hour be deemed to have expired, the time for the two leaders be reserved for their use later in the day, and Senator Hutchison be immediately recognized to offer a Senate concurrent resolution regarding Bosnia.

Mr. COHEN

Mr. COHEN. For the information of all Senators, the Senate will begin debate on Senator Hutchison's Bosnia resolution at 9 a.m., and by a previous order, the Senate will vote on H.R. 2606, the Bosnian resolution received from the House, at 12:30 p.m., on Wednesday. The majority leader has indicated that he hopes the Senate will be able to vote on Senator Hutchison's resolution and the Dole Bosnia resolution after a reasonable amount of debate during Wednesday's session. All Members can therefore expect rollcall votes throughout tomorrow's session of the Senate. The Senate may be asked to consider any available appropriations conference reports, the State Department reorganization bill, or any items cleared for action.

Mr. COHEN

Mr. COHEN. Mr. President, if there is no further business to come before the Senate, I now ask that the Senate stand in adjournment under the previous order.

Mr. COHEN

Mr. COHEN. Mr. President, when this bill was originally on the Senate floor, and Senator Domenici offered his amendment to preserve the Legal Services Corporation, I supported Senator Domenici's effort but expressed some grave reservations about the restrictions that were being placed on recipients of LSC funds. I hoped that the conference might come to understand the folly of these restrictions and report out a bill that would provide the LSC with sufficient funds to fulfill its important mission of ensuring that our most needy citizens have equal access to our system of justice--a promise written in stone on the front of the U.S. Supreme Court. Unfortunately, the product of the conference with respect to the LSC is entirely inadequate. Under the conference report, LSC funding would be cut from $400 million in fiscal year 95 to $278 million, a reduction of over 30 percent. The bill would place 19 separate restrictions on recipients of LSC funds. These restrictions control not only how legal services organizations may use their Federal grants but also how they may use funds derived from the States, bar associations, and private donations. Under this bill, legal services organizations and the skilled attorneys that work for them are precluded from testifying at a legislative hearing, commenting on a public rulemaking, or communicating with Federal, State, or local officials that operate programs for the indigent. At a time when we are authorizing the States to operate welfare, Medicaid, and a host of other programs with less Federal intervention, we are depriving them of the advice and expertise of some of the most knowledgable poverty law attorneys in the country. And, at a time when we are trying to reduce the intrusiveness of the Federal Government, we are imposing new Federal mandates on how private organizations--such as Maine's Pine Tree Legal Assistance and the Voluteer Lawyer Project--may use their own money. The bill also fails to provide the Corporation with sufficient administrative funds to properly perform the competitive bidding and monitoring requirements that this bill creates. I realize that there are many in the other body that wish to eliminate LSC in its entirety and see these measures as the first steps in that process. But there were over 60 votes in the Senate to preserve LSC and those votes should not be ignored. I understand that the President intends to veto this legislation, so I expect that the issue of the funding and structure of LSC will be before this body again. I agree that LSC must share in the budget belt- tightening that is being experienced throughout the entire Government. And some new restrictions may be in order to ensure that LSC funds are targeted at the most critical needs of our indigent citizens. But in the end, the Corporation must be provided funds sufficient to guarantee the continued operation of its programs and restrictions that hinder legal services organizations from promoting the interests of their clients must be eased. I will continue to work toward this result with the President and members of the Appropriations Committee on both sides of the aisle.

Mr. COHEN

Mr. COHEN. Mr. President, I move to reconsider the vote.

Mr. COHEN. Mr. President, I rise to support the Pryor generic drug amendment which will correct an oversight in the General Agreement on Tariffs and Trade [GATT] implementing legislation that has unintentionally postponed the date at which certain generic prescription drugs can enter the market. While this delay only affects a handful of drug products, consumers who take these drugs are paying a big price for this technical mistake. This amendment would clarify the intent of transition rules in the trade bill allowing manufacturers who had made substantial investment in product development, based on pre-GATT patent expiration dates, to go to market as planned once they pay the patent-holder the required royalty. This correction is needed because certain provisions in the Hatch/Waxman Act, dealing with drug development, have had the unintended consequence of prohibiting generic companies from using the GATT transition rules. Pharmaceuticals are the only industry unable to use these rules. Under GATT, new pharmaceuticals are given patent protection for the longer of 20 years from the filing date or 17 years from the patent issuance. Transition rules were enacted to provide fairness to all industries and parties--patentee and competitor--during transition to the new patent-term law. We must correct this rather technical error in the trade bill to ensure these rules are available to all industries. Both Mickey Kantor, U.S. Trade Representative, and David Kessler, FDA Commissioner, agree with this interpretation and believe a legislative fix is needed to allow generic companies to go forward. This amendment is tightly constructed and would have no impact on other trade issues included in the GATT. While I am aware that this amendment will dip into the profits of a few pioneer drug companies, I believe this error has already given them an unintended windfall. If left uncorrected, it is estimated that the delay of several generic medications could cost consumers and government health programs nearly $2 billion. We have a responsibility to pass this amendment and help consumers gain access to more affordable medications. For millions of Americans, especially senior citizens, prescription drugs represent their largest out-of-pocket health expense. Many life-sustaining drugs are already out of their reach. We can not let the desire of a few drug companies to let this error go uncorrected place an even greater burden on consumers who struggle daily to pay for their prescription drugs.

Mr. COHEN

Mr. COHEN. Mr. President, I am well aware of the hazards of abusive class action lawsuits and unethical attorney conduct. Just before Thanksgiving there was an article on the front page of the New York Times about a constituent of mine who received a benefit of $2.91 from a class action suit concerning overcharges in mortgage escrow accounts, but had $91.00 removed from his account to pay the attorney's fees of class counsel. I will soon be introducing legislation to protect consumers from these types of abuses. There are undoubtedly abusive securities class actions as well. But the key to reforming this area of the law, like all litigation reform, is to devise remedies that will weed out the frivolous lawsuits while allowing the meritorious ones to go forward. The conference report under consideration contains a number of necessary and well-crafted reforms. It requires that class members receive intelligible notices explaining the terms of class action settlements, prohibits secret settlement agreements, and promotes enforcement of rules sanctioning attorneys for unethical behavior. Unfortunately, the conference report also contains provisions that will prevent potentially meritorious cases from being pursued. In some instances, those who knowingly and intentionally mislead investors will be fully immunized from liability. Consequently, I will vote against this conference bill as I did when it was first considered by the Senate. I am especially concerned about the consequences that the bill will have on [[Page S 17993]] the elderly. The Special Committee on Aging, which I chair, has held a series of hearings on fraud against small, unsophisticated investors. The committee's investigation revealed that in an era of low interest rates, when retirees are seeking out higher yield investments, the elderly are particularly vulnerable to securities scams. Fraud against the elderly is particularly odious because their savings cannot be replaced by new earnings--losses resulting from fraud can affect middle-income seniors' standard of living for the rest of their lives. The safe-harbor contained in the conference report shields issuers of securities, or those working on their behalf, from lawsuits based on predictive statements they make about the future performance of a stock. The immunity is absolute, so long as the predictions are accompanied with cautionary statements indicating that actual results may differ from those predicted. The effect of this safe harbor is that corporate officials are immune from suit even if they make factual statements that they know to be false and that are intended to mislead investors. At least under the Senate bill, knowing and intentionally misleading statements would have been actionable. I am disappointed that the conference committee chose to broaden, rather than narrow, this provision. I am also concerned about the cumulative effect of some of the procedural changes made to the bill. The bill requires that before initiating a suit a plaintiff must be able to allege specific facts giving rise to a strong inference of the defendants' state of mind. A Senate amendment clarifying how plaintiffs could meet this burden was dropped by the conference. In addition, the bill prohibits plaintiffs from taking any discovery before it must defend a motion to dismiss the lawsuit. Together, the pleading standard and the bar on discovery will make it extraordinarily difficult to maintain a lawsuit because it is virtually impossible to prove the state of mind of a party until you have an opportunity to conduct interviews and examine documents. These and other provisions will not only deter frivolous lawsuits, but will create roadblocks and obstacles to suits that seek recoveries for genuine victims of fraud. For decades these private class action lawsuits have provided a necessary supplement to the enforcement efforts of the Securities and Exchange Commission. Enforcement of the securities laws and the confidence in our markets that these laws have engendered have contributed to making our stock markets the most robust in the world. The benefits this legislation is intended to achieve--the deterrence of abusive litigation--does not justify the potential costs of weakening an enforcement scheme that has effectively protected our markets for many years.

Mr. COHEN

Mr. COHEN. Mr. President, first let me congratulate my colleague for his very poignant recitation of what took place and join him in congratulating the men and women who serve in the armed services for the kind of dedication and creativity and ingenuity that is involved in preparing themselves for the ultimate conflict they must always be prepared for. I think his recitation only adds greater credence and compliments the leadership being shown in the armed services and the kinds of people being [[Page S 17742]] recruited day in and day out. The American people--not to mention this particular father--have a great deal to be proud of. So I commend him for his statement.

Mr. COHEN

Mr. COHEN. Mr. President, I want to commend Senator Kempthorne along with Senators Chafee, Reid, and others, for their efforts to bring to the floor this important safe drinking water legislation, which I was pleased to cosponsor. The changes that would be made by this bill-- reducing unnecessary burdens and costs to communities and ratepayers while guaranteeing reliable drinking water--have been sought by cities and towns in my State for many years now. The Safe Drinking Water Act is perceived at the local level to be one of the most expensive and onerous Federal environmental requirements that we have. Reform of drinking water regulations has been a top priority of local officials across the country as they expressed increasing frustration with unfunded Federal mandates. As a former mayor, I understand the difficulties local officials encounter when they are faced with an enormous number of requirements and little money to pay for them. I was pleased to be an initial cosponsor of the Unfunded Mandates Reform Act of 1995 which was the first step taken by Congress to reduce the impact of unfunded mandates. That was enacted into law last March under the leadership of Senator Kempthorne. It is going to make it much more difficult to enact new unfunded mandates. The second step toward reducing the burden on communities is to directly address the unfunded mandates that currently exist on the books. The bill before us today represents a very thoughtful and prudent approach to this critical second step. The purpose of the bill is to maintain a safe drinking water supply while reducing the cost to communities and ratepayers. We need to remind ourselves that while cutting costs is very important, it is also critical that we do not lose sight of the fundamental goal of providing citizens with clean drinking water. People expect the water coming out of the tap to be safe, and we must not do anything that would jeopardize public health. It is a sorry comment indeed that you read in the local paper in this community that people need to boil their drinking water. Here we are in the Nation's Capital where people have to be alerted that the water they are drinking is not safe, that it contains harmful bacteria. Therefore, local residents are told to be sure to boil their water. That does not say very much for the state of affairs in this community, to say the least. But it is a warning, perhaps, to all of us that we cannot simply engage in looking at the costs without taking into account what the major and central goal has to be: protecting the health and welfare of our people. This bill would amend the Safe Drinking Water Act to increase the role of risk assessment and cost-benefit analysis in standard setting. It would also provide waivers from various requirements for small drinking water systems, and would authorize a revolving loan fund to provide funding for drinking water infrastructure projects. This legislation goes a long way toward providing flexibility for States and municipalities to develop drinking water programs that make sense for particular communities instead of the current one-size-fits-all approach. One of the most critical aspects of this legislation is its recognition of the unique problems expensive Safe Drinking Water Act requirements pose to small communities. A recent CBO study found that the Safe Drinking Water Act has resulted in fairly modest costs for a majority of the households in this country. Approximately 80 percent of the households are expected to incur costs of $20 annually. However, the CBO noted that ``the household served by small water systems are particularly likely to face high costs,'' some well in excess of $100 per year. Additionally, that study found that costs to ratepayers tend to be higher for surface water systems than for groundwater systems. In Maine, the majority of households get their water from municipal systems, all but a handful of which serve fewer than 10,000 users, and most of which serve less than 4,000 users. Maine has a relatively high percentage of water systems that rely on surface water as their source. Because this water has historically been very clean, few towns had filtration facilities. As a result, Maine water systems now have spent over $150 million in the past few years to comply with the surface water treatment rule, which has been particularly hard for these small community systems. One example of this would be Southport, ME. It is an island town of about 650 year-round residents, where the voters recently rejected-- overwhelmingly, I should point out--a $300,000 plan to bring the town into compliance with the Safe Drinking Water Act. The town's 70-year- old system relies on surface water since there is little potable ground water on the island. Providing water that meets the law's standards would raise the annual water rates for seasonal residents from $136 to $306. In Searsport, ME, the water district is currently proposing a 66- percent rate increase due to the need to convert from surface to ground water. As a result, the water costs of one Searsport company would increase by $48,000 a year. The company, understandably, is considering other water sources, although the implication for other users are going to be enormous if that company left the town system. Finally, I would like to share just one more example of the need to reform the Safe Drinking Water Act. Among the many letters I have received from Mainers expressing concerning about the law's impact is a very thoughtful letter from Mrs. Audrey Stone of Bucksport. Mrs. Stone wrote: As I rely totally on my Social Security check and therefore am restricted to a fixed income, as are many other residents in this community, you can readily see that the impact of a water rate increase in excess of $200 per year poses grave threats to my ability to maintain my residence. Additionally, those residents who have another source of water supply may choose to shut off the water company at the street, returning to their own source of water and defeating the purpose of this previously enumerated act. Further, this leaves less ratepayers to absorb the cost of the mandated improvements. Mr. President, I strongly believe we have to preserve public confidence in the safety of our drinking water, but current Federal laws seek to achieve the goal of clean drinking water in a very expensive and sometimes very wasteful manner. This bill will maintain a safe drinking water supply and reduce unnecessary costs and burdens to communities and utilities that provide the water. By reducing unnecessary costs and providing additional Federal funding, communities will be better able to maintain reasonable rates and address other public works concerns and priorities such as law enforcement and education. Mr. President, there was a former city official from Lewiston, ME, who said, as a result of the costs of water regulations to communities, ``We will have the cleanest water in the State and the dumbest kids.'' It was a provocative statement, but it certainly hit home because he indicated that he was faced with a Hobson's choice of either obeying Federal environmental mandates or spending money on educating the community's children. He could not do both. I think this legislation will help solve that Hobson's choice and allow some flexibility to small communities so they may meet the goal of protecting our people while not forcing them to cut education and other high-priority items. I urge my colleagues to support this important legislation. I yield the floor.

Mr. COHEN. I concur with Senator Snowe on this point. There are 19 small, economically disadvantaged towns in Maine currently under compliance order to install filtration systems as required by the SWTR, and the deadlines for those orders will be expiring over the next year. Without adequate Federal financial assistance, these disadvantaged communities will not be able to comply with the filtration requirement. We understand that section 13(b) of S. 1316 allows a State to exempt an economically disadvantaged public water system serving a population of less than 3,300 people from the requirements of a national primary drinking water regulation as they relate to maximum contaminant standards or treatment techniques for a period of up to 3 years, as long as there is a reasonable expectation that the system will receive Federal financial assistance during the exemption period. In addition, the bill would allow a State to renew this exemption in 2-year increments up to an additional 6 years.

Mr. COHEN

Mr. COHEN. Mr. President, I wish to announce that the Subcommittee on Oversight of Government Management and the District of Columbia, Committee on Governmental Affairs, will hold a hearing on Wednesday, November 29, 1995, at 9:30 a.m., in room 342 of the Dirksen Senate Office Building, on S. 1224, the Administrative Dispute Resolution Act of 1995.

Mr. COHEN

Mr. COHEN. Mr. President, the moral imperative for balancing the budget is to stop Congress from passing on a mountain of debt to future generations. Thomas Jefferson reminded us that a generation that spends money while taxing another ``squanders futurity on a massive scale.'' Persistent budget deficits reduce the pool of savings necessary for critical investments in new research, plants and equipment. Virtually every economist agrees that without these investments, standards of living cannot rise. Our collective sin has been the amoral indifference with which we have demanded that our children pay for our extravagances, while robbing them of their ability to provide for their own subsistence. This is tantamount to fiscal child abuse, a crime for which there has been no punishment and, perversely, one for which politicians have long been rewarded. Our constituents, in 1994, urged us to stop the pain. Republicans proposed to do precisely that. Despite the defeat earlier this year of a constitutional amendment that would have mandated a balanced budget, my Republican colleagues have passed the first plan in 26 years that produces bottom line equilibrium within a seven-year time frame. I take no issue with the need for deep spending reductions, but I am skeptical that we can achieve our goal while cutting taxes simultaneously. It strikes me that this approach rivals driving with one foot on the gas pedal while the other is on the brake. The Federal Government currently expends far more money than it collects, so that a tax cut can be paid for only by borrowing additional money. Paying for tax cuts with borrowed money is contradictory and self-defeating. Balancing the budget is itself an effective tax cut. Interest on the national debt costs the average household over $800 a year. Balancing the budget more quickly and forgoing a tax cut paid for with borrowed money would ease the burden of these hidden taxes. Balancing the budget more quickly would also lower interest costs for mortgages and student loans--saving families thousands of dollars. I cannot support this conference report because, like the budget plan considered by the Senate on October 27, it proposes to borrow $245 billion to pay for a tax cut that we cannot now afford. I strongly support balancing the budget in seven years and realize that this cannot be achieved without undertaking some difficult spending cuts. It is my hope that Congress and the President can work together on a bipartisan balanced budget plan.

Mr. COHEN. Mr. President, I rise to comment on the need to strengthen our commitment to strong nursing home standards in the budget reconciliation bill before us. The conference report on the budget bill has come a long way toward restoring current Federal nursing home standards and strong Federal and State enforcement of protections for nursing home residents. It represents a considerable improvement over the House bill that retreated from Federal standards and enforcement and reflects much of the Senate position on nursing home standards, but we are not there yet. Many patient advocacy groups and colleagues from the other side of the aisle have come forward to assail the nursing home provisions included in this bill, but I would ask them to pause for a moment to recognize that significant headway we have made in the debate over Federal nursing home standards. The debate is no longer over the need for national standards and Federal oversight of nursing homes, but over what national standards are necessary to be maintained. I remain cautious of several of the changes made in conference agreement which could undermine the improvements nursing home residents and their families have witnessed since the enactment of the [[Page S 17310]] OBRA 87 regulations, but I recognize the substantial progress that has been made. Specifically, I am concerned about provisions of the bill allowing nursing homes to be accredited by private sector organizations as a way of meeting State certification requirements. In the past, private accreditation has been perceived as a loophole for facilities to avoid oversight, In order for accreditation to be acceptable, we must be sure that the Federal and State governments retain full authority to monitor facilities and that standards and residents' rights are not compromised. I also have reservations about several changes that have been made to current law. For example the bill eliminates current regulations that restrict a nursing home from placing extra requirements on Medicaid patients as a condition of admission, such as denying a Medicaid bed unless a gift, payment, or donation is given to the facility. Without the current admission policy limitations, patients and their family members will no longer be protected against discrimination based on source of payment and duration of stay contracts. It also removes the requirement that facilities provide care and services to allow each resident to attain or maintain his or her highest practicable level of physical mental, and psychosocial functioning. While this standard may sound a bit abstract, it was a key phrase negotiated in the OBRA 87 requirements to encourage nursing facilities to provide the best possible to nursing home residents. It reduces the frequency of required inspections of nursing homes from every year to every 2 years unless the facility has been found to have substandard care; eliminates the requirement for comprehensive training for State and Federal surveyors; removes requirement that resident assessments be conducted using a national uniform data set in order to monitor patient outcomes and consistency in patient care; relaxes protections against unfair transfers and discharge of nursing home residents; reduces some minimum training and staffing requirements for nursing homes--including elimination of 75 hours of training for nurse aides and the requirement that facilities with more than 120 beds employ a qualified social worker. Also, it reduces the frequency of mandated Federal validation surveys on 5 per cent every year to 5 per cent every 3 years; removes requirement directing surveyors to reduce the time between identification of standards violations and the final imposition of remedies; eliminates language calling for incrementally more severe fines for repeated or uncorrected deficiencies; reduces maximum civil monetary penalty imposed on nursing homes that are out of compliance from $10,000 to $5,000; and eliminates language requiring retroactive civil monetary penalties for past noncompliance. The conference agreement on nursing home protections has come a long way toward restoring the goal of full protections for millions of nursing home residents nationwide, but certain critical issues remain unresolved. I will continue to evaluate the changes proposed by the conferees and will work with the leadership and consumer groups to guarantee adequate protection for elderly and disabled nursing home residents.

Mr. COHEN

Mr. COHEN. Could I have 1 more minute?

Mr. COHEN. Mr. President, first let me thank both the Senator from Alaska and the Senator from Hawaii for their efforts in trying to negotiate with their House counterparts. I and other Members have been locked in negotiations for weeks now with our House counterparts on the authorization bill, and we have yet to reach success. And so I appreciate the work that the Senators have put in and, especially, in working out the differences in the funding requirements. One area that troubles me is the B-2 bomber. For several years now I think we have gone on record as saying no more than 20. We decided that several years ago. At first there was a notion we had to have a penetrating bomber because after we fired off our ICBM's in an exchange with the Soviet Union, we would need the B-2 bomber to penetrate Soviet air defenses, what remained of them, to go in and hunt down mobile missiles. When that became rather impractical, to say the least, when we finally exposed the rationale for that, the Air Force at that point came back and said, well, we do not really need it as a nuclear penetrating bomber, perhaps we can use it as a conventional bomber. They used to present us with a chart indicating that the B-2 will replace some--I cannot recall the number now--but somewhere from 40 to 50 aircraft. If you have one B-2, you will not need all these other aircraft. This one B-2 can fly back and over. No jamming aircraft needed, no F-15 escorts, and so on. I said, ``Fine, take all the B-2's and eliminate all the other aircraft. We do not want that tradeoff,'' they said. ``We want to have the B-2 and all the other aircraft.'' But we are now on the eve of this particular conference report, and once again, we find there is roughly $500 million included for the B-2 bomber. I want to ask a question of my colleague from Alaska as to whether or not it is his and his colleague's intent, the managers of the bill, to open up the B-2 line to start producing more B-2 bombers? I can tell you why I am concerned about this. We are in the process now of negotiating with the other body. The other body by 3 votes--3 votes--approved additional funds for the B-2 bomber. They want to open up an entire new line to produce another 20 B-2 bombers. That is with life-cycle costs of roughly $30 billion. I want to know, where is the $30 billion going to come from? Now, I could see some are making the case, saying, ``Well, maybe we need to do a little more experimentation here on the B-2, that this is, by the way, 1970's technology. We are moving into the 21st century. We may have to update the B- [[Page S 17157]] 2 with some new research and development.'' I can see the case being made for the purchase of even spare parts for the existing B-2 fleet. But I am really concerned that we might start down the path, an irrevocable path, to build 20 more B-2 bombers, at a cost of $30 billion, and I do not know where the money is going to come from. So, I want to know from my friend from Alaska as to whether or not the Appropriations Committee is committing itself and committing this body to opening up this line, to taking the cap off, to starting another process of building at least 5, 10, 20, more B-2 bombers. If that is the case, I would have great difficulty with this measure.