Larry Craig

Mr. CRAIG

Mr. CRAIG. Specifically to the point of New Jersey, if you take the capital investment bonded by the State of New Jersey and the surpluses invested in the employment trust funds and you put them into a unified budget with the operating budget of the State of New Jersey, that is, the General Accounting Office report, October 1983, as we do at the Federal level in a unified budget, guess what you have in the State of New Jersey? You have a balanced budget based on revenue, based on the value of the trust funds, based on the capital investment from bonding, and that is why you have the rating you do in the bond system. Now, what the Senator is saying is true, but we must tell the whole story. And the whole story is the net assets versus the expenditures of the State of New Jersey. Dick Gephardt over in the House asked for that report, and in almost all cases with all States, if you look at it through the eyes of a unified budget, which the Senator is not arguing at this moment----

Mr. CRAIG. Will the Senator yield?

Mr. CRAIG. Mr. President, I now yield 5 minutes to the Senator from Illinois.

Mr. CRAIG

Mr. CRAIG. Mr. President, I rise in opposition to the Johnston amendment. I am not a lawyer, but legal and constitutional experts I trust and respect have convinced me that the supposed problem with judicial review is, at best, no problem at all; and, at worst, it is a red herring that may give some Senators an excuse to vote no on the BBA. I start with Senator Hatch, an outstanding constitutional lawyer. If there were a risk of judicial intrusion into legislative matters, he would be the down here arguing for an amendment to restrict the power of the courts. I am convinced that there is no risk of improper court action. Otherwise, I would be the first Senator down here supporting a limit on judicial review. I am persuaded by the testimony of former Attorney General William Barr. To summarize what he said: There is a remote risk of judicial micromanagement; if judicial intrusion arose, Congress could correct it by statute; The remote, correctable risk was far outweighed by the need for, and the benefits of the balanced budget amendment; There would rarely--if ever--be standing to sue; The Constitution, the balanced budget amendment itself, and long- established judicial and constitutional doctrines all require the courts to pay great deference to Congress' handling of legislative business, especially when Congress acts affirmatively to establish statutory processes to enforce and implement the amendment. Former Attorney General Griffin Bell, a Democrat from the Carter administration appeared before the Judiciary Committee this year to strongly endorse the balanced budget amendment. In a 1992 memo to Representative L.F. Payne on this subject, the Lincoln Legal Foundation said this: constitutional balanced budget amendment . . . would cede the power of the purse to a runaway judiciary. To the contrary, it would eliminate certain authorities that courts currently have to order the disbursement of federal funds without appropriations. Last year, in testimony, attorney John C. Armor told the Judiciary Committee: The balanced budget amendment a suitable addition to the Constitution; Limited judicial review was appropriate; Congress is already empowered in the Constitution to limit judicial intrusion appropriately through statute. Finally, I refer to an excellent brief memo by the U.S. Chamber of Commerce that summarizes how judicial action will be limited appropriately. I am tired of opponents to the balanced budget amendment citing the Missouri v. Jenkins case. I agree that Missouri v. Jenkins was decided wrongly; but that case has nothing to do with the legal or constitutional considerations around this amendment. That was a case of Federal pre-emption. That was a case of the Federal courts enforcing Federal law on a local school district. Let us look at our Constitution: Article I says, ``All legislative powers herein granted shall be vested in a Congress of the United States * * *'' Raising taxes is a legislative power. Writing budgets and setting priorities is a legislative power. Article III says: ``* * * the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.'' Let us look at the amendment itself: Section 6 says Congress will enforce and implemented the BBA; Section 6, by expressly allowing good faith reliance on reasonable estimates, allows Congress reasonable flexibility and reduces the likelihood of second-guessing by the courts; Section 2, by subjecting Congress to 3/5 votes on the limit on debt held by the public, makes the amendment essentially self- enforcing and locates that self-enforcement squarely in Congress. No other amendment to the Constitution removes the courts from the process of enforcement. In fact, the very, very slight chance that some case may come before the courts is a good thing; it will motivate Congress to make sure we comply with the amendment and stay out of court. It will reassure American people that the same branches of Government that built up a $4.7 trillion debt, will at least have the legality of their actions subject to fair and impartial interpretation. At the same time, judicial involvement will be limited to, in the words of Marbury versus Madison, ``saying what the law is.'' They may strike down a piece of budget legislation--we may be told to go back and start over. They may rule whether an action by the President is or is not contrary to the amendment. It does not mean the courts can write a budget or raise taxes. But interpreting the law is the job of the courts. Congress can enact reasonable limitations on judicial review. All of which is appropriate, limited, and balanced. As Senator Brown has pointed out, the experience of the States with that flood of lawsuits has never materialized. Finally, as Senator Simon has said, if we balance the budget, if we run small surpluses, if we take care to vote on the issues the amendment says to vote on, we will never be hauled into court. I ask unanimous consent that the various documents that I have just referred to be printed in the Record.

Mr. CRAIG. Mr. President, this is not an issue here. The Senator knows the rules of the Senate as do I, and certainly he is not under that obligation. I was only asking for a courtesy.

Mr. CRAIG. I see. Let me say for the Record, because I do not want to object to proceedings here, the three-fourths amendment in section 1, it is my understanding the Senator from West Virginia plans to offer an amendment to it?

Mr. CRAIG. Would the Senator mind for the Record saying so?

Mr. CRAIG. And I will not object, would the Senator from West Virginia mind discussing with us at this time the amendment he plans to offer following this amendment?

Mr. CRAIG. Mr. President, reserving the right to object----

Mr. CRAIG. Mr. President, I note the absence of a quorum.

Mr. CRAIG. I thank my colleague.

Mr. CRAIG. I hope that if we can get a unanimous consent on that, we would both try to yield back as much as possible of the unused time and so encourage our colleagues.

Mr. CRAIG. I thank the Senator from Louisiana for yielding. He is about to lay down an amendment that is a very important amendment to this issue that I think both sides are very concerned about and want ample time to debate. I would like to see if we could not arrive at a unanimous consent agreement here. Is it acceptable to the Senator from Louisiana if we look at 4 hours equally divided?

Mr. CRAIG

Mr. CRAIG. Mr. President, reserving the right to object--and I do not object to the Senator's additional 2 minutes--let me amend that to add 3 minutes for the Senator from Montana and that this additional 5 minutes does not come off from the total time agreed upon for the Boxer amendment.

Mr. CRAIG

Mr. CRAIG. My point is, the Governor from California asked those rules be waived.

Mr. CRAIG. If I can complete my statement on my time.

Mr. CRAIG. You and I do not have any disagreement. I was referencing Federal rules and regulations that the Governor of California did ask that the Feds back away from so they can complete the freeway rebuilding way ahead of schedule. That is exactly what happened. I was not referencing money. You are absolutely right, the Governor of California was here and by a supermajority of the U.S. Senate, completely within the compliance of the amendment we have proposed, the Governor of California got the money he asked for. Thank you. I retain the remainder of my time. Mrs. BOXER addressed the Chair.

Mr. CRAIG. Mr. President, at this time, I will only speak briefly to the Boxer amendment. But I think it is important that the record of the Congress, as it relates to dealing with emergencies in our country and disasters in our country so declared by our President, be very clear for the record. The Senator from California and the Senator from Vermont are absolutely correct. There has not been a time in the Congress of the United States, when we were faced with a natural disaster that had badly damaged a State or region of the country and put our citizens in peril, that we did not respond. And so, when I was looking at crafting a balanced budget amendment, along with a lot of other Senators and Representatives, one of the things we needed to recognize was the very thing the Senator from California is speaking about; that the amendment itself and the requirement, because we wanted to put it in the Constitution, could not be so rigid as not to respond to the needs of the public. And so we provided the supermajority to be the escape valve, if you will. But only under a critical situation could it be applied, not under the simple majority, not even the constitutional majority that I am surprised the Senator did not require in her amendment. Be that as it may, here is what the record of the U.S. Congress has been like for the last decade in responding to natural disasters. In 1989, for Hugo, pictures 1 and 2 so demonstrated on that display by the Senator from California, the Senate voted 97 to 1, almost 37 votes beyond the supermajority required by our amendment, to fund Hugo. There was no question in the mind of any Senator that this was not something that we ought to respond to. The House voted 321 to 99, clearly beyond the supermajority target that we have spoken about and that is embodied within the Constitution. It causes us all to think. It causes us all to be tremendously dedicated to looking at the details of the proposal as presented by the Budget Committee or by the President for us to consider an emergency, and that we should do. It ought not be the snap of a finger and a simple majority here, not even a constitutional majority, to do so. But clearly, we fell under the purviews of the amendment as it is proposed, not the Boxer amendment, but Senate Joint Resolution 1, the true constitutional amendment. Again, in 1990, the Hugo supplemental, the Senate voice voted it. It was so easy to get through the Senate, that had to be adhered to that we voice voted it. The House, 362 to 59, an even larger vote than the initial supplemental appropriation for the Hugo disaster. In 1992, Andrew, Senate, 84 to 10; House, 297 to 124, once again, well beyond the supermajority that is required under the Constitution. The Midwest floods, in 1993, the House voted 400 to 27; the Senate voice voted it. We recognized the magnitude of that disaster, and we responded to it. In essence, what I am saying is, in every case I cited, what the Senator from California is proposing simply was not necessary and, at the same time, under the amendment as I and others have drafted it, we allowed this kind of flexibility and the standard was met, though it could have been waived. But what our amendment would do would cause the Senate and the House to seriously consider and work with the States to make sure that the money was being well spent, that the States could not handle their particular disaster and that, in the end, if it was absolutely necessary, the general public of this country, the general taxpayer, would respond through the General Treasury of our Federal budget. The 1994 L.A. earthquake, the very kind that the Senator from California is talking about that has brought her to the floor with her concern--and I do not question that concern in any sense--what was the vote in the Senate? 85 to 10, well beyond the 60 that would be required under the constitutional amendment. The House voted 337 to 74. From 1978 down through 1994, time and time again, and as I look at the voting record I find in only one situation in the Senate where, under the supplementals as they were proposed, the supermajority would not have been acquired. And in most instances, where the House had a recorded vote, the Senate voice voted it. What does that voice vote express? That without question, this was something that the Senate jointly, in a majority, in fact with a unanimous vote, agreed to. Having said that and looking at the details of the amendment as proposed by the Senator from California, what we find here is a waiving by a simple majority for an entire year of any moneys that might be necessary. I believe that is an opening up of this amendment that cannot be accepted. I also believe that the premise, not the emotion, not the concern and not the dedication by which the Senator from California has offered this amendment, but under the premise of what she has offered the amendment, that the supermajority could not be acquired, simply does not exist on the record. The record clearly shows that this Senate time and time again, by a supermajority vote in the seventies and eighties and nineties and unanimously, has voted out the supplemental moneys to fund the emergencies that she talks about because she, like I, understands that what can happen to California might some day happen to the State of Idaho or it might happen to the State of Vermont, as the Senator from Vermont spoke. Where we may differ is on different funding programs. On these national disasters where the lives and the properties of our citizens are truly in peril, we have always stood united. It is on the extra where it is really questionable whether the money can be wisely spent do you find the House or the Senate backing away. In fact, in the instances of California, it has been the Governor of California over the last several years that has been saying to the Federal Government, ``Get out of my way, back away from your regulations and your obstacles and your controls, we can do it for less money. Your Feds and your regulators have created environments that are much more costly in responding to the needs of the citizenry.'' As it happened in the California earthquake, it has happened in the California floods recently where the Governor has had to say to the Federal Government, ``Back away, let us do it quickly and let us do it right and we can save hundreds of millions of dollars.'' While that is not directed at this amendment or the amendment that the Senator is amending, my point is, with restraint and with the current understanding of the Congress of the United States, these problems can be handled through the current amendment as it was crafted. Both the House Judiciary and Senate Judiciary Committees understood these problems, and it is my premise, my firm belief that it is dealt with in the amendment and the amendment by the Senator from California simply is not necessary to deal with her concerns or the concerns that I have as it deals with national disaster. I retain the remainder of my time. Mrs. BOXER addressed the Chair.

Mr. CRAIG. Will the Senator yield?

Mr. CRAIG

Mr. CRAIG. Mr. President, I move to reconsider the vote by which the motion was agreed to, and I move to lay that motion on the table. The motion to lay on the table was agreed to.

Mr. CRAIG

Mr. CRAIG. Mr. President, I ask unanimous consent that there now be a period for the transaction of morning business, with Senators permitted to speak for not to exceed 15 minutes each.

Mr. CRAIG

Mr. CRAIG. Mr. President, I ask unanimous consent that the Subcommittee on Transportation and Infrastructure of the Committee on Environment and Public Works be granted permission to meet Tuesday, February 14, 1995, at 2:30 p.m., to conduct a hearing on the Reauthorization of the Water Resources Development Act and the U.S. Army Corps of Engineers' fiscal year 1996 budget request.

Mr. CRAIG. Mr. President, I ask unanimous consent that the Senate Committee on the Judiciary, be authorized to meet during a session of the Senate on Tuesday, February 14, 1995, at 9 a.m. in Senate Dirksen room 226, on Federal crime control priorities.

Mr. CRAIG. Mr. President, I ask unanimous consent that the Committee on Indian Affairs be authorized to meet on Tuesday, February 14, 1995, beginning at 9:30 a.m., in room 485 of the Russell Senate Office Building on the fiscal year 1996 budget.

Mr. CRAIG. Mr. President, I ask unanimous consent that the Committee on Foreign Relations be authorized to meet during the session of the Senate on Tuesday, February 14, 1995, at 10 a.m. to hold a hearing on foreign policy overview and the State Department fiscal year 96 budget presentation.