Russell Feingold

Mr. FEINGOLD

Mr. FEINGOLD. I thank the Chair. I certainly want to join with the chairman's comment that this is a worthy debate and one that people should join in if they have either strong feelings in favor of or against the constitutional amendment regarding flag desecration. Mr. President, in response to the chairman's challenge, I would like to rise today in opposition, strong opposition, to the proposed constitutional amendment relating to the flag. I do so with the utmost respect for my colleagues and especially the distinguished chairman of the Judiciary Committee and the many Americans who support this effort and, of course, in the spirit of my own utmost respect for the flag of this country. Mr. President, I and all Members of this body share the enormous sense of pride that all Americans have when they see the flag in a parade or at a ball game or simply hanging from store fronts and porches all across their home State. It is one of my favorite sights regardless of the occasion. It makes me feel great to be an American when I see all those flags. I appreciate that this is a deeply emotional issue, and rightly so. Like most Americans, I find the act of burning the American flag to be abhorrent and join with the millions of Americans who condemn each and every act of flag desecration. I understand those who revere our flag and seek to hold it out as a special symbol of this Nation. It is a very special symbol of our Nation. However, I think the key to this whole issue is that we are not a nation of symbols--we are a nation of principles. Principles of freedom, of opportunity, and liberty. These are the principles that frame our history and these are the principles, not the symbols but the principles, that define our great Nation. These are the principles found in the U.S. Constitution and the Bill of Rights. No matter how dearly we all hold the flag, it is these principles we must preserve above all else, and it is adherence to these principles which forms the basis of my opposition to the proposed constitutional amendment. As a threshold, Mr. President, let me say that I view any effort, any effort at all, to amend the U.S. Constitution as something that we should regard with trepidation. The chairman in his comments this morning said to those of us who suggest that maybe if we do the flag amendment, it might lead to other similar amendments, a slippery slope if you will. The chairman kept saying, ``Give me a break. Give me a break''--that this was unlikely; that the emotions that fuel this issue would not fuel other attempts to amend the Constitution. That those emotions would be just as worthy and just as heartfelt and patriotic and just as full of values as the emotions that drive this effort, I think is clear on its face and that this is a first step that could lead to many other steps that could leave the first amendment in tatters. Since the adoption of the Bill of Rights in 1791, the Constitution has been amended on only 17 occasions. Yet, Mr. President, this is the third amendment that has been considered by our Judiciary Committee in the first term of the 104th Congress alone, with hearings being held on what could very well be a fourth constitutional amendment. According to the Congressional Research Service, over 115 amendments--115 amendments--have been introduced thus far just in the 104th Congress-- amendments to the U.S. Constitution. While I do not question the sincerity of these efforts, there is much to be said for exercising restraint in amending this great document. The Constitution has served this Nation well and withstood the test of time, and the reason it has withstood the test of time is that we have typically, almost always resisted the urge to respond to every adversity, be it real or imagined, with that natural instinct to say, ``Let us pass a constitutional amendment.'' It is a gut feeling we have when we see a wrong. Let us just nail it down. Let us not pass a law-- put it in the Constitution and forever deal with the issue. However, history, as well as common sense, counsel that we only amend the Constitution under very limited circumstances. I strongly believe that those circumstances do not exist in the case of the so-called flag burning amendment. Proponents of this amendment argue that we must amend the Constitution in order to preserve the symbolic value of the U.S. flag. However, they do so in the absence of any evidence that flag burning is rampant today or that it is likely to be in the future. But perhaps more importantly, this amendment is offered in the absence of any evidence, any evidence at all, that the symbolic value of the flag has in any way been compromised in this great Nation. It has not. No evidence has been offered to show that the small handful of misguided individuals who may burn a flag each year have any effect whatsoever on this Nation's love of the flag or our Democratic way of life. The inescapable fact of the matter is that the respect of this Nation for its flag is unparalleled. The citizens of this Nation love and respect the flag for varied and deeply personal reasons, some of which were eloquently expressed today by the distinguished chairman of the Judiciary Committee. That is why they love the flag, not because the Constitution imposes the responsibility of love of the flag on them. As a recent editorial in the La Crosse, WI, newspaper pointed out, ``Allegiance that is voluntary is something beyond price. But allegiance extracted by statute--or, worse yet, by constitutional fiat--wouldn't be worth the paper the amendment was drafted on. It is the very fact that the flag is voluntarily honored that makes it a great and powerful symbol.'' I think that is a great statement one of our Wisconsin newspapers made. Mr. President, the suggestion that we can mandate, through an amendment to the Constitution, respect for the flag or any other symbol ignores the premise underlying patriotism; more importantly, it belies the traditional notions of freedom found in our own Constitution. Mr. President, some would argue this debate is simply about protecting the flag, that it is just a referendum over who loves the flag more. This faulty premise overlooks the underlying issue which I think is at the heart of the debate, that being to what degree are we as a free society willing to retreat from fundamental principles of freedom when faced with the actions of just a handful of misguided individuals? [[Page S 18257]] In my estimation, Mr. President, the answer is clear. The cost exacted by this amendment in terms of personal freedom--in terms of personal freedom--is just far too great a price to pay to protect a flag which already enjoys the collective respect and admiration and love of an entire nation. If adopted, this amendment will have an unprecedented direct and adverse effect on the freedoms embodied in the Bill of Rights. These are freedoms which benefit each and every citizen of this Nation. Yes, Mr. President, it is true, despite what the chairman said today, it is true that for the first time in our history, for the first time in this great Nation's history, the Constitution and the Bill of Rights, both premised on limiting the Government--they are premised on limiting the Government--will be used to limit individual rights, and, in particular, for the first time the constitutional process will be used to limit, not guarantee, but limit individual freedom of expression. I do not know how you could overstate the significance of such a new course in our constitutional history. As Dean Nichols of the Colorado College of Law noted before the Constitution Subcommittee of the Judiciary Committee, said, ``I think there would be a real reluctance to be the first American Congress to successfully amend the first amendment.'' Do not let anyone kid you. That is what this would do. It would amend the first amendment. It will have a different number, it will be listed in the high twenties, but it will change and alter the first amendment. The chairman tries to address that by saying, well, shortly after the Bill of Rights was passed, the 11th amendment was passed in 1798. That is accurate. But it did not change the right to free speech. It did not limit the scope of the Bill of Rights. In fact, the 11th amendment was consistent with the spirit of the Bill of Rights by guaranteeing that the States cannot be compromised by the Federal Government. The 11th amendment was not about limiting free expression or any other freedom of the Bill of Rights. It states: The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State. It is not about free speech. The point is really that this would be the first time--the first time--in this Nation's history that we would change something I consider to be very sacred, the Bill of Rights. That we would choose now, after 200 years of the most unparalleled liberty in human history, to limit the Bill of Rights in the name of patriotism is inherently flawed. And I think it is really, ironically very tragic. Some will argue that we should not attach too much significance to this unprecedented step, while still others argue that the amendment has no effect whatsoever on the first amendment. This is despite the fact that this amendment, if adopted--make no mistake about it--if it is adopted, it would criminalize--make it a crime--the very same expression that the Supreme Court has previously held to be explicitly protected under the first amendment. So it is clearly an erosion of the Bill of Rights. You may argue that it is a justified erosion or a necessary erosion, but it clearly limits what the U.S. Supreme Court has said is part and parcel of our freedom as an American to express ourselves. Mr. President, I think it is essential to carefully consider the basis for the adoption of the Bill of Rights before we go ahead and alter it for the first time in our Nation's history. Many who originally opposed the Constitution, those not entirely comfortable with the ratification, sought the Bill of Rights in particular because, in their view, the Constitution in its original form without the Bill of Rights, failed to properly consider and protect the basic and fundamental rights of the individuals of this country. That is why we have a Bill of Rights. Although many Federalists, including Madison, felt that the limited powers conferred to the Government by the Constitution, the limitations in the Constitution itself, were sufficiently narrow so as to leave those rights safe and unquestioned, people still felt we had to go ahead and have a Bill of Rights adopted in order to provide the reluctant States with the assurance and the comfort necessary so they would approve the Constitution, so they would enter into this great Federal Union. And everyone today in the 104th Congress should understand this. What is so much of the rhetoric of the 104th Congress about? The concern that the Federal Government is too strong, that it does too much, that we ought to leave enough power to the States and to individuals. That is what all the rhetoric is about today. Well, that is what the Bill of Rights was about also. And that is why we have never changed it. Because the notion of the Contract With America is not a new one. It is a heartfelt feeling of all Americans that the Federal Government must be tightly limited in its powers so that our liberties as individuals and as States cannot be compromised. From this beginning in compromise, almost exactly 204 years ago, the Bill of Rights has evolved into the single greatest protector of individual freedom in human history. It has done so in large measure, I believe, because attempts to alter its character have to date been rejected. If this great document was changed every few years, as I am sure every Congress has been tempted to do, it would not be the great Bill of Rights that not only Americans revere but people around the world revere as well. That individuals should be free to express themselves, secure in the knowledge that Government will not suppress their expression based solely upon its content, is a premise on which the Nation was founded. The Framers came to this land to escape oppression at the hands of the state. Obviously, there is no dispute about that, that Government should not limit one's ability to speak out. That is established in our Constitution by the simple words in the first amendment, ``Congress shall make no law * * * ''--no law--``* * * abridging the freedom of speech * * *.'' Of course, over time this Nation has had to grapple with the exact parameters of free speech, regulating in regard to defamation or obscenity for example. However, the fact that some expression may be proscribed, can be stopped, does not obviate the presumptive invalidity of any content-based regulation. In the words of Justice Scalia of the U.S. Supreme Court: . . . the Government may proscribe libel; but it may not make the further content discrimination of proscribing only libel critical of the Government. In other words, you cannot chose which messages you like and which messages you do not like. You cannot say libel against this Government is different than other kinds of content that might also be libel. Although we need not concern ourselves with the exact parameters of speech subject to limitation here because the expression in question, political expression, is clearly protected under the first amendment. This points out the fact that the one defining standard that has marked the history of free expression in this Nation is that speech cannot be regulated on the basis of its content. The presumptive invalidity of content regulation protects all forms of speech, that which we all agree with, as well, of course, as the speech we may disagree with or find objectionable. To do otherwise would make the promise of free speech a hollow promise. What does it mean if we only protect that which we like to hear or is pleasant to our ears? As the Supreme Court stated in Street versus New York: . . . freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order. Yet, Mr. President, this amendment departs from that noble and time- honored standard. It seeks instead to prohibit a certain kind of expression solely, solely because of its content. The committee report accompanying this amendment makes it explicit that this effort is directed at that expression which is deemed disrespectful--disrespectful. This amendment attempts to deal only with disrespectful expression. Even more troubling is that this amendment leaves the determination of what is disrespectful to the [[Page S 18258]] Government, the very Government that we were trying to limit after we won the Revolutionary War and got together and passed a constitution. It is that Government that we are going to allow to define what is objectionable by this amendment. What could be more contrary to the very foundations of this country? For the purpose of free expression to be fulfilled, the first amendment must protect those who rise to challenge the existing wisdom, to raise those points which may anger or even offend or be disrespectful. As the great jurist, William O. Douglas, observed, free speech: . . . may indeed serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Mr. President, adherence to this ideal is exactly what separates America from oppressive regimes across the world. We tolerate dissent, we protect dissenters, while those other countries suppress dissent and jail dissenters or, for example--and I can give you many examples, as I know the Chair can--as recent events illustrate in Nigeria, the condemnation of dissenters to a fate far more grave than incarceration: summary execution. The first amendment to the U.S. Constitution is not infallible. It cannot sanitize free expression any more than it can impart wisdom on thoughts which otherwise have none. Nor can the first amendment ensure that free expression will always comport with the views of a majority of the American public or the American Government. But what the first amendment does promise is the right of each individual in this Nation to stand and make their case, regardless of their particular point of view, and to do so in the absence of a Government censor. In my estimation, this right is worthy of preserving, and I think that right is at risk today on the floor of the U.S. Senate. When we start down the road to distinguishing between whose message is appropriate and whose is not, we risk something far greater than the right to burn a flag as political expression. Much of what is clearly protected expression can easily be deemed objectionable. For example, as I said many times before and a lot of people have said before me, I deplore those who proudly display the swastika as they parade through our neighborhoods. I deplore these who hide behind white sheets and espouse their litany of hate and ignorance under a burning--a burning--cross. I deplore those comments which suggest that the most effective way to deal with law enforcement is to shoot them in the head. We hear that these days. Just as I object to speech which seeks to equate particularly vile criminal acts with a particular political ideology. Each of these forms of expression, Mr. President, is reprehensible to me and to traditional American values of decency and tolerance. But they are all protected forms of expression nonetheless, and they would continue to be protected after this amendment was passed and ratified. So do I believe that we ought to outlaw them through an amendment to the Constitution of the United States? Of course not. So too it is with flag burning. As the Supreme Court has repeatedly stated, the act of flag burning cannot be divorced from the context in which it is occurring, and that is political expression. It was pretty clear from our Judiciary Committee hearings if somebody is out in the backyard grilling on July 4th and accidentally burns their flag, that would not be the necessary intent. There has to be some mental element--it cannot just be an accident. So this amendment is about what somebody is thinking. It is about what somebody is thinking when they burn the flag. It is about the content of their mind. This Nation has a proud and storied history of political expression, much of which, obviously, can be characterized and is characterized sometimes as objectionable. Does any Member of this body believe that if the question had been put to the Crown as to whether or not the speech and expression emanating from the Colonies in the form of the Boston Tea Party or the Articles of Confederation, should be sustained, the answer, I think, we all know would have been a resounding no. Could not the same be said of messages of the civil rights and suffrage movements? This Nation was born of dissent and, contrary to the view that it weakens our democracy, this Nation stands today as the leader of the free world because we tolerate those varying forms of dissent, not because we persecute them. In seeking to protect the U.S. flag, this amendment asks us to depart from the fundamental ideal that Government shall not suppress expression solely because it is disagreeable. As Justice Brennan wrote for the majority in Texas versus Johnson: If there is a bedrock principle underlying the first amendment, it is that the Government may not prohibit expression of an idea simply because society finds the idea itself offensive or disagreeable. We have not recognized an exception to this principle even where our flag has been involved. In charting a divergent course, this amendment would create that exception, an exception at odds with free expression and with our history of liberty. If adopted, this amendment would, for the first time in our history, signal an unprecedented, misguided and troubling departure from our history as a free society. Mr. President, there are also definitional and practical flaws with this amendment. Beyond the proposed amendment's departure from traditional notions of free expression, there are practical aspects that raise concerns, not just for those who may offer objectionable points of view, not just for the purported or possible flag burners, but for all Americans. This amendment will subject the constitutional rights of all Americans to potentially an infinite number of differing interpretations, the parameters of which the proponents themselves cannot even define. Without any guidance as to the definition of the key terms, the proposed amendment provides the Congress and the States the power to prohibit the physical desecration of the U.S. flag. Testimony was received by the Constitution Subcommittee that the term ``flag of the United States,'' as used in this amendment, is, as they said, ``problematic'' and so ``riddled with ambiguity'' as to ``war with the due process norm that the law should warn before it strikes.'' Even supporters of this amendment, including former Attorney General of the United States William Barr, have acknowledged that the term ``flag'' could mean many different things. The simple fact of the matter is that no one can lend any guidance as to what the term ``flag'' will mean, other than to suggest that it will be up to various jurisdictions. Senator Hatch, the chairman, has indicated today that the States will be removed from the amendment. If that is not the case, leaving them in would raise a second practical problem with this effort to amend the Bill of Rights, that being that the fundamental constitutional rights would be explicitly subject to the geographic boundaries of political subdivision. The report accompanying this measure acknowledges that the extent to which this amendment will limit your freedom of expression could well depend on where you live. Therefore, if you live in Madison, WI, your rights could be vastly different than the rights of your cousin who lives in Seattle, WA, for example. Furthermore, the rights of the States to limit the first amendment would not prohibit subsequent legislative bodies from expanding or further limiting rights under the first amendment. In other words, fundamental rights to free speech could vary from one election to the next. So I will await with interest the amendment regarding the States, but as the amendment is written now there will be at least--at least--for the first time in our country's history, 51 interpretations of the first amendment. I think this is counter to the very premise of the Bill of Rights, that being that the rights of individuals should remain beyond the purview of unwarranted governmental intrusion or intervention. That is what led to the adoption of the Bill of Rights in the first place. In the words of Justice Jackson, speaking for the Supreme Court in 1943: The very purpose of the Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials, to establish them as legal principles [[Page S 18259]] to be applied by the courts. One's right to life, liberty and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections. Yet, this amendment does exactly that and subjects those fundamental rights to the outcome of elections. What comfort is a first amendment which tells the American public that the appropriateness of their political expression will be left up to the Government? At the core of this proposed amendment is the desire to punish that expression which is disrespectful. The ability to accomplish this troubling goal turns upon the interpretation that would be given to the term ``desecration.'' Mr. President, despite attempts to argue that it means to ``treat with contempt'' or ``disrespect'' or to violate the ``sanctity'' of the flag, it is just obvious that this is subject to interpretation. The word ``desecration'' could not be more subject to interpretation. It is almost an inherently vague term. If, as the report accompanying this measure suggests, every form of desecration is not the target of this amendment, then it logically follows that the Government--the Federal Government --will make distinctions between types of political expression, and the distinction will be this: that which is acceptable and that which is not. The flaws in this process should be obvious to every American. So long as your political expression comports with that of the governing jurisdiction, you are going to have your freedom of expression, and it will be preserved. We can certainly debate this point, but in punishing only that expression which is ``disrespectful,'' someone--in this case the Government--has to decide what is disrespectful and what is not. For those of us who think that this is an easy distinction and there is not going to be a problem deciding what is desecration and what is disrespectful, I have an example. A Vietnam war veteran, a friend of mine from Wisconsin, Marvin J. Freedman, recently wrote in an article, aptly entitled, ``The Fabric of America Cannot Be Burned,'' that the fatal flaw in this amendment will be its application. In Mr. Freedman's words: The real potential for crisis is one of context. Consider the star spangled bandanna. Let's say a highly decorated veteran is placing little American flags on the graves at a veterans cemetery for Memorial Day, works up a sweat and wipes his brow with one of those red, white, and blue bandannas. If the flag amendment were on the books, would the veteran's bandanna be deemed a ``flag of the United States''? Probably not. But if it were, would his actions be interpreted as ``desecration''? I cannot imagine anyone thinking so. Mr. Freedman continues: However, if a bedraggled-looking antiwar protester wiped his brow with the same bandanna after working up a sweat and denouncing a popular President and the United States Government's military policy, a different outcome could be a distinct possibility. Whether the bandanna would be deemed a ``flag'' and the sweat-wiping considered desecration would very likely be directly related to the relative popularity of the President and the war being protested. That is where the flag amendment and the first amendment would bump into each other. Mr. President, we are all free to draw our own conclusions as to the validity of Mr. Freedman's hypothetical. I think it does a good job in pointing out, in very simple terms, that which the Supreme Court has often stated: You cannot divorce flag desecration from the political context in which it occurs. Ultimately, value judgments have to be made, and I think these are judgments that this amendment, unfortunately, reserves to the Government. For the first time in our history, it gives that judgment to the Government, not to individuals, not to the citizens of this country. Mr. President, the rights at the heart of this debate are far too fundamental and far too important to be subjected to the uncertainty created by this amendment. We must not abandon 2 centuries of free expression in favor of an unwarranted and ill-defined standard which allows Government to choose whose political message is worthy of protection and whose is not. This is counter to the very freedoms the flag symbolizes. The very idea that a handful of misguided people could cause this Nation--a Nation which has, from its inception, been a beacon of individual liberty, and a Nation which has defended, both at home and abroad, the right of individuals to be free--to retreat from the fundamental American principle that speech should not be regulated based upon its content is really cause for great concern. I cannot believe we are going to let a few people who are not even around, as far as we know, not even doing this flag desecration, cow us into passing this amendment. That would give the victory to the flag burners. It would be score one for the flag burners if we are foolish enough to amend the Constitution and Bill of Rights, for the first time in our history, just to deal with such misguided people. Again, Mr. President, there is no doubt that the American people care deeply about the flag. But I really believe they care just as deeply about the Constitution. I was recently contacted by a man from Sturgeon Bay, WI, a veteran of the Navy. What did he have to say? He wrote: The most important part of the Constitution is the Bill of Rights, the first ten amendments. The most important one of those is the first amendment. Burning a flag, in my opinion, is expressing an opinion in a very strong way. While I may disagree with that opinion, I must support the right to express that opinion. To me, the first amendment is the most important thing. The flag is a symbol of that and all other rights, but only that, a symbol. My constituent, I think, said it quite well. I appreciated very much the time and effort taken to write to me, not because we share the same perspective, but because the letter makes the very important point that, in the final analysis, and as the proponents of the amendment readily concede, the flag is but a symbol of this Nation. As I said at the outset, Mr. President, we are not a nation built on symbols; we are a nation built on principles. We will be paying false tribute to the flag, in my opinion, if in our zeal to protect it we diminish the very freedoms it represents. The true promise of this great and ever-evolving Nation is rooted in its Constitution. Ultimately, the fulfillment of this promise lies in the preservation of this great document, not just of that which symbolizes it. If we sacrifice our principles, ultimately, our symbols will represent something less than they should. Therefore, Mr. President, I must respectfully oppose this effort to amend the Bill of Rights. While I do not oppose this effort with anything less than the utmost respect for the American flag, my belief that we must be vigilant in our preservation of the Bill of Rights and the individual freedoms found therein really dictates my opposition. Mr. President, to conclude, the measure before us limits the Bill of Rights. It actually limits the Bill of Rights in an unprecedented, unwarranted, and ill-defined manner. As such, I intend to oppose this resolution. Mr. President, I ask unanimous consent that a series of editorials from throughout the State of Wisconsin, all opposed to flag burning and also to this amendment, be printed in the Record.

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, I rise to share with my colleagues my great concern about the actions of the House telecommunications conferees. Despite what appeared to be some movement away from the regulation of constitutionally protected speech, I understand that the conferees adopted an amendment yesterday which would subject adult Internet users to criminal penalties for so-called indecent speech. Rather than focusing on materials that are truly harmful to minors, the language agreed to yesterday would prohibit great works of literature from being made available on line. It would make subject to criminal penalties frank discussions between adults about the prevention of AIDS. This amendment will extinguish many on-line support groups dealing with issues such as child abuse and sexual assault. It will likely place severe limitations on the materials discussed on many online scientific forums. In the ultimate irony, the amendment does virtually nothing to address the problem of the already illegal victimization of children over computer networks. Rather than focus on real issues and real concerns, this amendment focuses on indecency. It places blame on a technology rather than on the perpetrators of crimes against children. Mr. President, despite the fact that the materials and communications on the Internet that are of the greatest concern to many parents, such as obscenity, child solicitation, and child pornography, are already subject to criminal penalties, and despite the fact that technologies already exist to allow parents to control what their children have access to on the Internet including indecent materials, the House conferees chose to take this unwise step towards censorship. Mr. President, there is still time to reverse this action and for the conferees to direct their efforts towards providing parents with even greater ability to protect their children using tools offered in the market place. I urge my colleagues to recognize just what this amendment will mean if it remains in the telecommunications bill. I urge them to recognize that indecency is not the same as obscenity or pornography. The distribution of obscene materials on the Internet is already illegal and those crimes are already being aggressively prosecuted. Indecent speech, on the other hand, is far different than obscenity and is protected by the constitution. Indecency includes four letter words that many adults use routinely in their everyday speech. Indecent words include those that are among the first words many children speak, not because they learned them from the Internet, but because they heard them in the school yard, in child care settings, and in some cases, in their own homes. While it is unfortunate that children are exposed to such speech at young ages, it is not a reason to censor constitutionally protected speech between adults on the Internet. Creating criminal penalties for indecency as stringent as those imposed on traffickers of obscenity is extreme, unwarranted, and unnecessary. As I said earlier this week in this Chamber, this type of law will have a tremendous chilling effect on speech over the Internet. What two adults can say over the phone to one another, they will not be able to say over the Internet for fear a minor might read their words. The fact that America Online censored the word ``breast'' on their service, albeit temporarily, should forewarn members of things to come. Screening by online service providers will be necessary if they wish to [[Page S 18249]] protect themselves from criminal liability. It is quite conceivable that discussions involving scientific terms for other bodily parts will no longer be allowed for fear they might offend a user and land the service in court. Guaranteeing the Internet is free of speech restrictions, other than the statutory restrictions on obscenity and pornography which already exist, should be of concern to all Americans who want to be able to freely discuss issues of importance to them regardless of whether others might view those statements as offensive or distasteful. Shifting political views about what types of speech are unsuitable should not be allowed to determine what is or is not an appropriate use of electronic communications. While the current target of our political climate is indecent speech--the so-called seven dirty words--a weakening of First Amendment protections could lead to the censorship of other crucial types of speech, including religious expression and political dissent. I believe the censorship of the Internet is a perilous road for the Congress to walk down. It sets a dangerous precedent for First Amendment protections and it is unclear where that road will end. I urge the conferees to reject restrictions on constitutionally protected speech when the full conference committee votes on this legislation.

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, I rise in opposition to H.R. 1833. I do so because this legislation raises serious policy, legal and medical issues. H.R. 1833 seeks to impose criminal sanctions upon physicians who perform certain types of late term abortions. It is important, Mr. President, to understand that very few late term abortions take place in this country, under any circumstances. It is estimated that there are approximately 600 abortions annually performed in the third trimester of pregnancy, with about 450 done by what is called an intact D&E procedure. The procedure which would be banned under this legislation is a form of an intact D&E procedure. Late-term abortions take place under the most tragic of circumstances, where something has gone wrong with the pregnancy. Late-term abortions are physically difficult and emotionally devastating to the women involved and their families. Several women who were forced to have such an abortion testified at the Senate Judiciary Committee hearing about the pain and anguish they and their families had experienced. This bill would place the Federal Government into the role of deciding what procedures a physician can or cannot use in performing a late-term abortion. It would substitute the judgment of Congress for the judgment of the individual physician performing an abortion. I believe that such legislation is bad policy. The American people have repeatedly said that they want less government interference in their lives. This bill moves in exactly the wrong direction. Since the beginning of the 104th Congress, there has been a great deal of rhetoric about how we need to restrain the Federal Government, about how the Federal Government has usurped the powers of State and local government entities, and about how the Federal Government has intervened in areas beyond its primary realm of responsibility. We have heard repeatedly that we need fewer Federal mandates and fewer Federal regulations. Mr. President, let me say that I agree with a good deal of those sentiments. I believe that the Federal Government has gone too far in many areas. That is one reason why I voted against last year's Federal crime bill and this year's terrorism bill. In each instance, I saw examples of the Federal Government overzealously reaching into areas of law which have traditionally been within the jurisdiction of State and local law enforcement agencies. I voted for the unfunded mandate legislation because I agree that the Federal Government needs to exercise restraint in forcing the States to comply with Federal mandates. I support many aspects of the regulatory reform drive because we do need greater flexibility and less Federal micromanagement in many areas. But now, Mr. President, we are presented with legislation that places the Federal Government in the role of deciding what specific procedures a physician should use or not use when faced with a problem pregnancy and a woman's desire to terminate that pregnancy. Mr. President, there are many reasons why this is a dangerous area for Federal Government intervention. One of the physicians said it well during the Judiciary Committee hearing on November 17. Dr. J. Courtland Robinson testified: Sometimes, as any doctor will tell you, you begin a surgical procedure expecting it to go one way, only to discover that the unique demands of the case require that you do something different. Telling a physician that it is illegal for him or her to adapt his or her surgical methods for the safety of the patient . . . flies in the face of standards for quality medical care. Dr. Robinson also pointed out in his testimony that many physicians would not undertake a surgery at all if they were legally prohibited from completing it in the safest, most effective way, according to their professional judgment. Mr. President, I want to reiterate that the measure under consideration would insert the Federal Government into one of the most intensely private and personal areas. This bill would have Congress override the decisions made by a woman and her physician in an area that literally involves life or death. It is ironic that many of the same individuals who strongly challenged the ability of the Federal Government to handle comprehensive health care reform are among the foremost proponents of this effort to insert the Federal Government into a physician's decisions in the operating room. For example, during last year's health care debate, the distinguished Senator from North Carolina (Mr. Helms) asked: Do you want the Federal Government, the Government that operates your postal system to decide whether you should have an operation or not? With this kind of government intervention, what is left for the doctor and the patient to decide? Yet, that is precisely the kind of intervention that is being proposed by this legislation. This measure says that a physician who determines that a specific procedure is necessary to protect the life or health of his or her patient may face a Federal criminal prosecution for exercising his professional judgment. Mr. President, it is also important to note that the language of this bill is so vague that a number of physicians have indicated that they would simply stop performing late-term abortions rather than run the risk of criminal prosecution or endangering the life or health of their patient. Dr. Robinson told the committee: For many physicians, this law would amount to a ban on a D&E [procedure] entirely the law is so vague and based on erroneous assumptions, it would leave doctors wondering if they were open to prosecution or not each time they performed a late abortion. That means that by banning this technique, you would in practice ban most later abortions altogether by making them virtually unavailable. And that means that women will probably die. Dr. Robinson, incidently, is a former Presbyterian missionary who has practiced medicine for more than 40 years. He described for the committee his exposure to the consequences of illegal abortions prior to the Roe decision. He testified that over a period of five years on the staff of a hospital in New York, he watched women die from abortions that were improperly performed. His concerns about the consequences of legislation that would make certain types of abortions illegal and deny women access to the safest abortion procedure for their individual circumstances were clearly an outgrowth of his familiarity with what happens when Government treads too [[Page S 18193]] far into what should be a decision made by a woman and her physician. Mr. President, that brings me to a second policy concern regarding this legislation. On its face, H.R. 1833 seeks to criminalize the performance of a particular type of abortion. Yet, Mr. President, there is little doubt that the purpose behind this legislation is to begin the process of curtailing and ultimately denying all access to legal abortion. When pressed, many of the proponents of H.R. 1833 will admit the truth of this assertion. One of the major House proponents, Congressman Chris Smith (R. N.J.) stated in a November 9, 1995, USA Today article, `` We will begin to focus on the methods [of abortion] and declare them to be illegal.'' At the Judiciary Committee hearing on this measure, I asked one of the proponents, Helen Alvare, Director of Planning and Information, Secretariat for Pro-Life Activities of the National Conference of Catholic Bishops, whether all methods of abortion should be criminalized. The response I received was very clear. Ms. Alvare stated her view that ``every single kind of procedure that takes an unborn life'' should be outlawed. Mr. President, I specifically asked whether that included nonsurgical forms of abortion, such as the use of a drug like RU-486 which leads to the termination of a pregnancy in the very early stages, the first few weeks. The answer was yes, and Ms. Alvare was very clear that she found the use of an abortifacient drug at the earliest stages of a pregnancy to be as objectionable as the procedure under discussion. Mr. President, I think the record should also note that in the past there have been efforts to ban other methods of abortion which the proponents of this legislation now point to as remaining available should this ban be enacted into law. For example, in 1976, in Planned Parenthood versus Danforth, the Supreme Court struck down a Missouri statute which would have prohibited saline abortion procedures after the first 12 weeks of pregnancy. It is clear that this legislation is part of a calculated plan to make abortion more difficult for women and their physicians. It is part of a calculated plan to limit and erode a woman's ability to exercise her constitutionally protected rights. We cannot lose sight of the fact that Dr. Robinson's memories of a time when abortion was illegal and women died from illegal abortions might become a reality again if these efforts are successful. Mr. President, I want to focus now upon an important aspect of the Judiciary Committee hearings dealing with why this particular procedure might, in the judgment of a woman's attending physician, be the most appropriate in light of her individual circumstances. Mr. President, throughout this debate, different physicians who testified at the Judiciary Committee hearing will be quoted as to their view regarding whether the procedure under discussion is more or less safe for a woman than other procedures, whether the procedure may be necessary in a particular situation to protect a woman's future ability to bear children, and precisely what the procedure is that would be banned under this legislation. What occurred at the hearing, Mr. President, was a professional disagreement among members of the medical community on the efficacy and risks associated with various abortion procedures. That members of the medical community have different opinions on these issues is both understandable and expected. It is also precisely the reason why trained physicians and their patients, not members of the Congress, should make the decisions about what course of treatment is appropriate in individual situations. The ability to choose between alternative courses of medical treatment and the ability to choose between physicians who favor one procedure over another is something that we often take for granted. Physicians who themselves do not choose to perform the type of procedure at issue have also made it clear that they do not believe Congress should be legislating in this area. In particular, Dr. Warren M. Hern of Boulder, Colorado, a physician who performs late-term abortions has been quoted by proponents of H.R. 1833 as having reservations about this particular procedure. However, in his testimony submitted to the Senate Judiciary Committee on November 17, 1995, he outlined the possible advantages of using the intact D&E procedure, including a reduction of the risk of perforation of the uterus and reducing the risk of embolism of cerebral tissue into the woman's blood stream. He concluded by stating: While I may choose a different method of performing a late abortion, I support the right of my medical colleagues to use whatever methods they deem appropriate to protect the woman's safety during this difficult procedure. It is simply not possible for others to second guess the surgeon's judgment in the operating room. That would be dangerous and unacceptable. Mr. President, I am not sure that it is appropriate for Members of Congress to even try to resolve a matter that is the subject of debate between physicians as to whether there are situations where this procedure is preferable to another procedure. It is clear from the testimony at the Judiciary hearing that there are respectable differences of opinion in this area. For example, Dr. Mary Campbell, medical director of Planned Parenthood of Washington, DC, testified there were a number of situations where alternative abortion procedures such as induction or cesarean section are considered less safe than an intact D&E procedure. For example, Dr. Campbell testified that ``a woman is twice as likely to die'' with an induction procedure, an alternative abortion procedure in a late-term pregnancy. She further testified that a cesarean section was another option, but that a woman was 14 times as likely to die with a Cesarean hysterotomy as with a D&E procedure. Dr. Campbell outlined her views as to why the intact D&E procedure was preferable in certain cases. According to Dr. Campbell, the procedure requires less dilation of the cervix and thus markedly decreases the chances of cervical lacerations and cervical incompetence which can adversely affect future pregnancies. She also testified that the uterine scar, especially from the kind of vertical incision most often used in cesarean sections involving abnormal preterm fetuses, creates an increased risk of uterine rupture in future pregnancies. Dr. Robinson testified with the same concerns about the risks posed by alternative procedures. In response to my question, Dr. Robinson testified that a vertical scar in the uterus resulting from such a cesarean was definitely an increased hazard when a woman has a subsequent pregnancy. Included in the hearing record are letters from Dr. Elaine Carlson of Cedars-Sinai Medical Center in Los Angeles indicating that alternative procedures can cause a traumatic stretching of the cervix that then increases a woman's changes for infertility in the future and from Dr. George Henry of Denver, CO, indicating similar concerns. Dr. Henry, in a subsequent letter to me elaborated on the risks to both a woman's life and her future ability to bear children from a cesarean section type of surgical approach. ``Such a surgery,'' Dr. Henry wrote, ``exposes the patient herself to much greater medical risk immediately and also increases the need for repeat C- sections in future pregnancies as well as the risk of uterine rupture in future pregnancies because of the uterine scar--and even the potential loss of the uterus if emergency hysterectomy is required.'' Other witnesses, proponents of this legislation, disagreed and stated their view that the intact D&E procedure was more risky than the other procedures, and that there were no circumstances where they would consider this procedure necessary to protect the life or health of the woman. Mr. President, what this debate told me is that there is room for disagreement between physicians about specific medical procedures; it is not for Congress to determine which side of this debate is right or wrong. These are medical questions which ought to be decided by medical professionals, not Members of Congress. Congress ought not to tie the hands of a physician trying to make the best decision for his or her patient. As Dr. Robinson testified, ``The physician needs to be able to decide, in consultation with the patient and based upon her specific physical [[Page S 18194]] and emotional needs, what is the appropriate method. The practice of medicine by committee or legislature is not good for patients or for medicine in general.'' Mr. President, the reasons why Congress ought to stay out of this decisionmaking process was also eloquently made by several women who had made the difficult choice of choosing this procedure when a much wanted pregnancy has turned into a tragedy. Coreen Costello testified: It deeply saddens me that you are making a decision having never walked in our shoes. When families like ours are given this kind of tragic news, the last people we want to seek advise from are politicians. We talk to our doctors, lots of doctors. We talk to our families and other loved ones, and we ponder long and hard into the night with God. Mr. President, we ought to heed those words. These decisions are private, personal decisions to be made by the families involved, guided by their physicians. The Federal Government ought to leave these decisions with the people involved. Finally, Mr. President, let me briefly address the Constitutional issues raised by this legislation. H.R. 1833, in my view, is fatally flawed because it fails to adequately provide protections for procedures necessary to preserve or protect a woman's life or health. Roe vs. Wade, and the cases that have followed including Casey, have made it clear that States have the authority to restrict and even ban abortions after fetal viability except where necessary to protect a woman's life or health. H.R. 1833 as originally proposed included an utterly inadequate provision allowing only an affirmative defense to be asserted by the physician that the procedure was necessary to protect a woman's life. In other words, a physician who performs this procedure in order to save a woman's life could be hauled into a Federal court and prosecuted for violating this statute. The physician would only be able to raise as a defense that the procedure was performed to save a woman's life. It is only after extensive debate that the proponents of H.R. 1833 proposed to change their language to provide an explicit exception from the statute's coverage for a procedure necessary to preserve a woman's life. However, the amendment they have offered contains limitations upon the life of the mother exception which also raise questions as to whether it comports with the standard set forth in Roe v. Wade. Moreover, the proponents have failed to even acknowledge the requirement that an exception be provided where the procedure is necessary to protect a woman's health, including her future ability to bear children. The proponents argue that such an exception is unnecessary because alternative procedures are available. Those arguments fail to acknowledge the medical disagreement over whether such alternative procedures pose greater risks to the woman's health. The proponents of this legislation seem to take the view that even if an alternative procedure would result in a woman being unable to bear a child in the future, that is an adequate alternative. Mr. President, I find this to be a particularly harsh judgement to be imposed upon families who have experienced the tragic end to a much- sought pregnancy. To tell a woman and her family that Congress will not allow her doctor to use a procedure which will allow her a greater chance to be able to have another pregnancy and bear a child in the future is cruel and unconscionable. Mr. President, let me conclude by reiterating again that this legislation would insert the Federal Government into one of the most private, personal decisions a woman and her family and her physician must face. The American people have said time and again they want less Government intrusion into their lives, not more. This bill is in every way an inappropriate extension of power by the Federal Government into the lives of individual Americans at a very traumatic and emotion point. It ought to be rejected.

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, I rise today to make a brief statement about Senator Kassebaum which I know she prefers I wouldn't, but which she will have to endure as a price of her retirement. It is, of course, a statement of tribute to her service in the U.S. Senate, and an expression of deep personal regret that she has decided to retire. Many of my colleagues and the major papers are rightfully highlighting Senator Kassebaum's legislative accomplishments and her many courageous, nonpartisan positions. But I want to focus my comments on her role in United States-Africa relations. I have had the immense pleasure of working with her in the past year as the ranking member on the Subcommittee on African Affairs, of which she has been an active member since 1981, and of course now chairs. For me, Senator Kassebaum's deep commitment, genuine expertise, and tremendous leadership on Africa have been one of the most inspiring influences I have had while in the Senate. In many ways, the fact that she chose Africa as one of her specializations says so much about what kind of legislator she is. As our colleague from Illinois, Senator Simon, often reminds us, though well-known and admired in Africa, Senator Kassebaum surely got few votes in Kansas for advocating Africa's interests. It certainly is not glamorous to travel to many of the places in Africa she has visited. And she certainly does not get the limelight often accorded foreign policy experts as a leader on United States-Africa issues. However, she has made a commitment to the region because it is the right thing to do: because there are complex issues in Africa that call out for American attention, and there have been too few voices in Congress that have cared about the United States-Africa relationship. She has grappled with the difficult issues, such as the genocide in Rwanda, the failing transition to democracy in Nigeria, the small window of opportunity to consolidate peace in Liberia, the reconstruction of Angola, the tragedy in Sudan, and so much more. Senator Kassebaum can always be counted on to address these issues, and then to work persistently to shape intelligent and active U.S. policies. This commitment exemplifies the principle, integrity, and keen sense of responsibility that have characterized her entire career. But Senator Kassebaum also stands out for her bipartisan--even nonpartisan--approach. While working wonderfully as a team player, she also has the strength to be independent when her principles are at stake. That is one of the reasons she has been so effective. For example, in 1986 Senator Kassebaum broke with a Republican President and led the vote to impose sanctions on the racist apartheid regime of South Africa. This, of course, was the defining moment that changed United States policy from constructive engagement to isolation of the regime, which eventually brought down apartheid, and gave birth to majority rule in South Africa. She has presided over our subcommittee in the same nonpartisan manner. While the Foreign Relations Committee may seem entangled in bitter partisan battles, the Subcommittee on African Affairs has functioned actively and smoothly under Senator Kassebaum's leadership, demonstrating what bipartisanship can accomplish when reason prevails and pettiness and politics are set aside. For me, it has been a wonderful opportunity to learn about Africa, and I think it has also enabled the subcommittee to do its job as a policymaker. Senator Kassebaum has given me faith that in spite of all the rancor and partisan bickering, it is still possible in the Senate to reach across the aisle and work together. These are some of the attributes that have made Senator Kassebaum a great Senator. But she is also a joy to work with because she is such a delightful and gracious person. As much as I enjoy the subject matter, I think her kindness and dedication have helped sustain my active interest in Africa, and make it an enjoyable experience. It will certainly be a more lonely process without her. Mr. President, I will value the next several months, working with her and learning from her. I will sorely miss her in the next session. I yield the floor.

Mr. FEINGOLD

Mr. FEINGOLD. Reserving the right to object, I ask if we could extend that to 25 minutes so we could go straight to 1 o'clock?

Mr. FEINGOLD. I rise in opposition to H.R. 1058, the Private Securities Litigation Reform Act, and do so because voting against the conference report, I think, is in the best interests of the average investor, not only in my home State of Wisconsin but all across the country. Mr. President, I think it is important to note that this bill was proposed with the worthy goal of trying to limit frivolous litigation. In particular, the goal was to stop the so-called strike suits that we have heard so much about. I think there is no question that trying to stop that is a legitimate goal that we can all support. However, the evolution of this bill starting from its introduction to its modification and initial passage in this body, to the conference report before us today has, Mr. President, been marked by a steady and unwarranted erosion of the basic protections the average investor in this country expects and, in my opinion, deserves. Simply calling this or any other piece of legislation a reform act does not make it so. The term ``reform'' implies that change is taking place that will serve the greater good. Sadly, this measure fails to achieve this worthy goal. In fact, when one looks closely, it becomes evident to me that this bill will work to the detriment of hard-working Americans who depend upon the securities laws to protect their savings and retirement and investments. As many of my colleagues have noted, this bill seemingly gets worse with each subsequent version that is placed before us. For example, the conference report expands the already flawed safe harbor provision which passed this body in July. The language of this bill protects forward-looking statements by insulating the maker of those statements from liability even if they are deliberately false, provided the statement is accompanied by what is termed ``cautionary'' language. Therefore, in the face of a disclaimer, investors will be left with no recourse against a corporate insider who makes predictions which were deliberately false. Furthermore, the conference report includes language contained in the House bill which explicitly states that there is absolutely no duty for any individual to update a forward-looking statement. What that means is even if it becomes apparent that a previously made forward-looking statement is false, the person who made the statement has no legal obligation to inform anyone of this new knowledge. It is difficult to imagine that this provision can provide the average American investor with any level of comfort or confidence. Mr. President, beyond this baseless inequity, the bill also fails to remedy the inadequate statute of limitations period for bringing these very complex cases of securities fraud. The failure to extend the statute of limitations in the face of evidence that these cases often take a great deal of time to discover and develop and prosecute is, in my view, counter to the notion that securities law exists to protect the investor. The practical result of this failure will be that legitimate plaintiffs, through no fault of their own, will be turned away at the courthouse door. This again, is hardly the kind of result you would expect from something that has the label ``reform.'' There are other flaws in this legislation as well, including the failure to hold liable those professionals, such as lawyers, accountants and underwriters, who aid and abet in the perpetration of securities fraud. Additionally, the bill sets forth pleading thresholds that are very difficult to attain. The effect is to require the establishment of certain facts at the outset of a case, although the plaintiff, Mr. President, has had no opportunity to conduct any discovery. In setting this unusual standard, the conference elected to drop an amendment offered by my colleague from Pennsylvania, Senator Specter, which passed this body with 57 votes. It would have clarified that what was required to constitute a well-pleaded complaint was evidence that the defendant had motive and opportunity to defraud, not actual proof of intent at that point. The conference report, in making the plaintiff prove the case even before the [[Page S 17962]] case has begun, goes a lot further than eliminating frivolous suits. What it will do is have an adverse and potentially detrimental effect on legitimate cases as well. The fee-shifting provisions of this bill will actually establish a harsher consequence for plaintiffs than for defendants who violate the Federal rules. As Ed Huck, the director of the Alliance of Cities, in the Wisconsin State Journal, said: Imagine city or county officials being swindled out of millions of taxpayer dollars--and learning that they'll have to risk millions more if they want to pursue a lawsuit. That's what the ``loser-pays'' provision of this legislation means--And, in a word, that's ``intimidation'' of crime payers. Mr. President, we should be wary of any legislation that has the effect of intimidating victims of fraud. In short, Mr. President, this bill is unbalanced, misguided, and will harm thousands of Americans who bear no relation to the frivolous lawsuits that this bill is supposed to target. There is no doubt that frivolous litigation, in any area of the law, is detrimental to our system of justice and to the society at large. However, the answer to these types of suits is not to foreclose the ability of legitimate plaintiffs to protect themselves against fraud, nor is it to deprive them of the right to seek recovery in court when they are defrauded. In my opinion, the negative consequences of this unbalanced bill will be significant and far reaching. Mr. President, I note that the report that accompanied the original S. 240 pointed out the simple, but important, goal of American securities law, and that is to promote investor confidence in the securities market. Sadly, the provisions of this bill fall very short of attaining that fundamental goal. We must be vigilant in our efforts to seek out and eliminate frivolous litigation. However, equally as important is our obligation not to lose sight of the average American investor, the person investing for retirement or to put children through college or simply to have a little better quality of life. In our zeal to reform, it is protection of these people which must guide and inform our efforts. So it is unfortunate that the provisions of this bill provide little more than hollow comfort to the American investor, but such is the case with H.R. 1058. In my opinion, the bill offers its alleged reform at a price that cannot be justified. Protecting the American investor should not be sacrificed in the misapplied name of ``reform.'' The securities laws of this Nation are essential to hard-working men and women all across America. Given that this conference report fails to uphold the tradition of protecting these hard-working men and women, I simply cannot support it. I intend to vote against this conference report. I thank the Senator from Nevada for his strong leadership on this issue. I yield back the remainder of my time and yield the floor. Mr. BENNETT addressed the Chair.

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, I am pleased to be able to follow the Senator from Vermont who spent a few minutes to address a matter which was reported by the news media throughout the country this weekend in which the Senator from Vermont referred to and has a great relevance to legislation which the Senate passed this summer and will consider soon again. The telecommunications conferees may within the next 24 hours decide whether this Congress is going to take the unwise step of censoring the Internet. I am speaking of the Communications Decency Act which passed the Senate overwhelmingly as an amendment to the telecommunications deregulation bill in June. The Communications Decency Act contained criminal penalties for the transmission of constitutionally protected speech over computer networks. The penalty for transmitting indecent speech which might be accessed by a minor was up to 2 years in prison and fines of up to $100,000. Indecency, unlike obscenity, is constitutionally protected. Indecent language has thus far, only been defined by the FCC in regard to the time, place, and manner in which it may be transmitted. The definition includes the so-called seven-dirty words including what some might call mild profanity. When this legislation was offered as an amendment in the Senate, I objected for a number of reasons. My fundamental concern was, and continues to be, that prohibitions on speech labeled indecent are unconstitutional. While courts have upheld restrictions on indecency to minors on other some forms of media, the Communications Decency Act would restrict communications between adults as well. The legislation, as passed by the Senate, could subject consenting adults communicating over a public USENET group to criminal penalties if their conversation took place in a forum that was accessed by a minor. I believe that not only is that unacceptable, it is also unconstitutional. Adults should not have to self-censor their words over public information forums. A profane exchange between two adults on a street corner which is overheard by a child would not subject those adults to criminal sanctions. However, if that exchange occurred on a public forum over the Internet and a child accessed that forum, those same adults could land in jail. During the floor debate, I raised serious concerns that the Communications Decency Act would have a chilling effect on computer networks, forcing adults to self-censor their words to what is appropriate for the youngest of children in the most conservative communities in the country. I, along with my colleague from Vermont, Senator Leahy, suggested that this type of censorship would also have a chilling effect on the many socially valuable forums that exist via the Internet. There exist currently many on-line support groups for child abuse victims, rape victims, victims of disease, for those coping with AIDS, and other social issues. In addition, there exist chat groups, bulletin boards and USENET groups to discuss presumably adult topics which might contain the seven dirty words or other adult language. I suggested that the Communications Decency Act would suppress those types of forums, limit the content of the discussions within those forums, and ultimately result in their termination. [[Page S 17964]] The proponents of the Communications Decency Act assured the Senate that such was not the intent of the amendment. In fact, Mr. President, some suggested that these types of concerns were raised in an effort to spin the issue. They suggested these fears were not real and were not likely to be realized. I suggest to Members of this body that news reports over the weekend confirm just how quickly those fears could be realized if the Communications Decency Act became law. One of the companies providing on-line services to consumers, America Online, in an effort to screen out filthy, vulgar and obscene language, apparently included the word ``breast'' in the list of prohibited words on AOL's services. Mr. President, the word ``breast'' has been used many times on the Senate floor with respect to health care legislation, is not even among the so-called seven dirty words. It is not indecent. It is not profane. Yet it was screened out by a service which has been under tremendous fire for not policing its networks carefully enough. Of course, the deletion of the word breast was met with an enormous outcry by women who participate in a breast cancer survivors online support group. According to press reports the deletion of the word breast from allowable AOL language became known when an AOL subscriber created her member profile identifying herself as a breast cancer survivor. She received a message from AOL indicating she could not use ``vulgar words.'' AOL soon was barraged by complaints by other users of the breast cancer survivors chat room. The word ``breast'' was subsequently allowed back on the service. However, an AOL spokesperson caveated that with ``as long as it is used in an appropriate manner.'' I mention this incident not to fault America Online. They are responding to a series of calls by interest groups, Members of Congress, and others to police speech over their services and to keep AOL family friendly. AOL like other on-line service providers is anticipating additional Government restrictions on speech over the Internet. When under the threat of Government imposed speech restrictions and potential criminal sanctions, it is quite reasonable to overreact, to be overly cautious, and to restrict more than that which is necessary. Mr. President, this is exactly what I fear will happen if the Communications Decency Act becomes public law. Words will be banned. Speech will be restricted. This, Mr. President, is the chilling effect that Senator Leahy and I referred to on the Senate floor just 5 months ago. Perfectly reasonable and acceptable language will be restricted and prohibited. Mr. President, while it may seem ridiculous that the word ``breast'' was, at least for a short period of time, considered vulgar, it would not be unreasonable for a company like AOL to restrict such words if the Communications Decency Act becomes law. Indecency is a largely undefined term. We know how the FCC has defined indecency for broadcast, but it is unclear what would be indecent on computer networks. If such restrictions are imposed, people will err on the side of caution in their speech. Under the Communications Decency Act, to protect themselves from criminal liability, on-line services will likely find themselves prohibiting the word ``breast'' as well as many other words. Adults with direct Internet access will also be forced to self-censor their speech, guessing what might be indecent, and guessing who might access their communications. In Saturday's Chicago Tribune, Barbara LeStage, a member of the American Cancer Society, commented on the AOL prohibition on the use of the word ``breast''. Her comments, I think are fairly insightful. She stated I don't have any problem with AOL trying to keep dirty words off their service. But I don't consider breast to be a dirty word. If you have people who see it as dirty, for whatever reason, then this [prohibition on use] is going to continue to happen. Mr. President, Ms. LeStage is exactly right. If indecency is going to be outlawed and the term therefore defined by community standards and the courts, this will continue to happen. People differ in their beliefs about what is appropriate for children, about what is dirty, vulgar or indecent. To some individuals even extreme profanity may not be indecent, to others, perhaps the word ``breast'' is indecent. When AOL determined that ``breast'' would be allowed under appropriate circumstances, we must wonder under what circumstance would it be inappropriate and who decides. This is the danger of government censorship of the Internet. Who defines what can be said without criminal sanctions? Who defines what is indecent? Who defines when certain terms are used appropriately and when they are not? Mr. President, Congress has entered a very dangerous area in its attempt to restrict constitutionally protected speech on the Internet. In the next 24 hours, the Telecommunications conferees will decide which road to take--that of Government excess or that of caution. I urge the conferees to err on the side of caution and to protect first amendment rights of Internet users. Such a goal is not inconsistent with our overriding objective of protecting children. Technology exists now to allow parents to screen out materials they find objectionable for their children. Obscenity, child pornography, and solicitation of minors via the Internet is already a violation of criminal law and is being aggressively prosecuted by the Department of Justice. I urge my colleagues not to take the step toward censorship. I believe we will immediately regret it.

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, I ask unanimous consent to speak for 10 minutes as in morning business.

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, I introduce legislation addressing existing and future agricultural promotion programs. Fundamentally, Mr. President, my legislation, the Agricultural Promotion and Accountability Act, makes some modest and common sense reforms to all of the existing agricultural promotion programs in order to make them more accountable to, and representative of, the farmers who pay for the programs. These congressionally authorized programs create boards and councils, made up of agricultural producers, which have the authority to assess a mandatory fee on producers to pay for the costs of board or council sponsored self-help promotion activities. Agricultural promotion programs are designed to allow producers to engage in self-help initiatives to promote their products to the consumer, to enhance demand and ultimately improve the economic security of farmers paying the assessment. It is hard to argue with that basic goal, Mr. President. These programs are fully funded and managed by farmers, with oversight conducted by the Department of Agriculture. The boards or councils authorized by Congress collect the producer funds and then conduct generic promotion activities for the specific commodity by contracting out the specific advertising and research projects to private entities. While some of these programs have existed for nearly 30 years, the majority were created and implemented in the last 10 years. In fact, since 1982, when national promotion programs collected just $45 million annually, the amount of money collected under mandatory promotion programs has increased ten-fold. These programs currently cover about 16 agricultural commodities including milk, beef, pork, eggs, soybeans, cotton as well as many specialty commodities. All totalled these programs collect roughly $500 million annually from producers and processors of commodities. According to USDA, 90 percent of all U.S. producers contribute money for promotion programs, either State or federally authorized. The growth in the number of these programs in the last decade is not surprising. As Federal dollars to support agriculture dwindle due to budget constraints, Congress has stood ready to allow producers to engage in these self-help efforts. I understand that when the Congress addresses omnibus farm legislation either this year or next year, that my colleagues and I will be asked to approve additional commodity promotion programs for popcorn, canola and rapeseed and perhaps other commodities as well. But Mr. President, while the goals of these programs are truly admirable, I am concerned that some of the issues raised by some farmers with respect to these programs have been swept away in the Congressional tide to approve more and more producer-supported checkoff programs. Congress has approved so many of these programs in such a short period of time that we have not taken a step back to look at overall principles guiding these programs and whether or not the programs are operating as they should be. These programs are typically referred to as checkoff programs since the funds that producers must pay to the promotion boards and councils are automatically deducted from the producer's check received for commodities sold. In many cases, the checkoff is a fixed amount, such as 15 cents per hundred pounds of milk sold, or $1 per head of beef or dairy cattle sold. In other cases, the amount deducted is a percentage of the market value of the commodity sold. The checkoff payment is mandatory and essentially permanent once a majority of producers approve of the overall program in an initial referendum. To give my colleagues an idea of the scope of producer contributions, consider the annual investment of a small Wisconsin dairy farm. A milk producer with a 50 cow herd, averaging 18,000 pounds per cow per year, would pay about $1,350 annually for State, regional, and Federal milk promotion activities. Mr. President, that is a large contribution for such a small farm. Consider that a large dairy with 1,000 cows, such as those in the southwest and western regions of the country, averaging 18,000 pounds of milk per cow, contributes about $27,000 annually for mandatory milk promotion. Consider also that a dairyman who also raises hogs, replacement heifers, and soybeans would contribute to the pork, beef, and soybean promotion program. Mr. President, these mandatory contributions represent a sizable investment by the individuals required to pay them. On the surface, these programs appear well-supported by farmers and others paying the mandatory assessments. However, as I have travelled the [[Page S 18030]] countryside of Wisconsin, holding listening sessions in each of Wisconsin's 72 counties each year, I have learned that, in fact, these programs tend to be controversial among farmers in Wisconsin. In my home State, where some counties are home to more cows than people, the most controversial of the boards are the National Dairy Promotion and Research Board and the Cattlemen's Beef Promotion and Research Board. In the 103d Congress, when I served as a member of the Senate Agriculture Committee, I had the opportunity to be involved in the creation of new promotion programs as well as the modification of existing programs. I learned, Mr. President, that the controversy stemming from these programs goes well beyond the beef and dairy programs. In each case, Mr. President, when the Committee addressed promotion programs from eggs to sheep to beef, the controversy among the producers footing the bill for the program was significant. In response to some of the concerns raised by farmers, the Senate Subcommittee on Domestic and Foreign Marketing and Promotion held a hearing on the beef and dairy promotion programs. The House Agriculture Committee held a similar hearing on the beef, pork, eggs and dairy checkoff programs in the 103d Congress. The bill I am introducing today addresses the concerns that have been voiced in these hearings during my tenure on the Committee and since that time. The concerns checkoff paying farmers have raised include: The promotion programs do not provide for adequate input by,or representation of, the producers paying for the program. The programs once authorized continue into perpetuity with little opportunity for producer review or reauthorization. All but one of the existing programs are permanently authorized by Congress. In most cases concerned producers must expend their own time and resources to gather enough names on a petition--usually 10 percent of all eligible producers--in order to call for another approval referendum. In the case of the dairy promotion program, cooperatives are allowed to vote on behalf of their producers, which some farmers contend biases the referendum by drowning out the voices of dissenting producers. The promotion programs require all producers to pay for a program regardless of whether they agree with the program, whether they think the program is working, and whether they spend their own money on individual promotion efforts. The programs far too often engage in activities well beyond those intended by the producers who approved the program at its initiation. Some producers complain that broad-scale public relations work funded by checkoff dollars does little to enhance demand and far more to advance the political objectives of certain contracting organizations. Such activities may violate the prohibition on the use of checkoff funds to influence government action or policy. Last August, during the Senate subcommittee hearing mentioned previously, staff of USDA pointed out one specific promotion effort that may have entered the grey area of prohibited activities. The programs provide preferential treatment to certain industry- governed farmer organization to the exclusion of others. Some farmers contend that the ties between some promotion boards and the industry- lobbying organization are too tight and may create a conflict of interest for those boards. The programs that do provide contracts or grants to specific lobbying organizations may be indirectly supporting or subsidizing the legislative activities of that organization. This concern has been voiced by a number of members of the Senate and the House with respect to the use of Federal funds and grants provided to lobbying organizations. In fact, much time and effort has been expended in the Senate to ensure that Congressionally authorized funding is not ultimately used for lobbying activities. The concerns that farmers have raised with respect to the use of checkoff dollars are consistent with these concerns. The mandatory nature of the programs and the contractual relationship maintained by some of the boards implicate the First Amendment rights of producers who should not be required to associate with a group with whom they do not agree. In fact, some state-wide promotion programs similar to the individual promotion programs addressed in my legislation, have been successfully challenged on First Amendment grounds. Mr. President, I think these are serious concerns. The fact that these programs impose an additional targeted tax on producers purportedly for their own good, should compel the Congress to take these complaints seriously, as well. Producers initially approved all of these promotion programs based on very specific goals and with a number of requirements and constraints. As members of the body that authorized these programs, we must ensure that the initial goals of these programs are being met and that those farmers required to pay for them have assurances that the programs are operated fairly and democratically within the bounds of the statute and without bias towards or against specific segments of the taxed industry. The legislation I am introducing today will help accomplish those goals without restricting the ability of the promotion boards to accomplish their objectives of enhancing consumer demand for the commodity. The Agricultural Promotion and Accountability Act provides guidelines to promotion boards and councils on the prohibited activities with respect to lobbying and other activities intended to influence government action or policy. It makes some conforming changes to existing statutes to ensure that all promotion programs are subject to the same restrictions. The bill addresses the concern that too much money is spent on broad scale public relations work and not enough on direct promotion of the product, by limiting the types of public relations works that can be conducted. In fairness to all producers in arguably heterogenous agricultural sectors, industry image enhancement activities are prohibited. What might be a desirable image for one segment of an agricultural sector, might not be desirable for other segments of the industry. Since the checkoff assessments are levied equally on all producers, in most cases, general public relations work with checkoff funds is not an appropriate or equitable use of promotion dollars. Instead, all boards will be allowed to promote the image of the generic product itself, which is consistent with the goal of enhancing consumer demand. The bill also improves the democratic nature of promotion boards and councils by providing producers with an opportunity to reauthorize their program, on average, every 5 years. Referenda on approval or termination of the mandatory promotion programs would be held periodically to assure that producers continue to support the program in which they make substantial annual investments. During that referendum, producers will also be allowed to decide whether or not they favor instituting refunds of assessments to producers who request them. These provisions will provide the checkoff paying producer with more control over the promotion boards they fund. Additionally, producers argue that if they are allowed a regular review of their programs, the boards will be more accountable to the farmers who foot the bill. The concern about the fungibility of checkoff dollars paid in contracts to industry-governed lobbying organizations is perhaps one of the most difficult issues to address. It is, of course, not a new issue. In fact, just 3 years ago, Secretary of Agriculture Dan Glickman, then a member of Congress, stated in a promotion program oversight hearing that ``Congress should not be in the business of enacting programs which will result in the collection of funds from all farmers for the benefit of lobbying groups which may represent the view of just a fraction of the farmers.'' As I stated earlier, that is exactly what some producers contend is happening under some of the agricultural promotion programs. To address those concerns the Agricultural Promotion Accountability Act creates a number of safeguards to ensure the independence of the boards from their contractors, to avoid conflicts of interest between the board and any contractor or grantee, to ensure [[Page S 18031]] that contracts are let on both an equitable and efficient basis providing a voice for all check-off paying producers, and to safeguard against any checkoff dollars being used for prohibited activities. Mr. President, I think the modest changes this legislation makes to promotion programs will go a long way to ensure the continued productivity and success of these promotion boards while providing producers a greater voice in how their money is spent. I urge my colleagues to support this legislation. I ask unanimous consent that a letter of support for the Agricultural Promotion Accountability Act from the National Farmers Union be included in the Record. I ask unanimous consent that the text of the legislation be printed in the Record.

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, I introduce legislation addressing existing and future agricultural promotion programs. Fundamentally, Mr. President, my legislation, the Agricultural Promotion and Accountability Act, makes some modest and common sense reforms to all of the existing agricultural promotion programs in order to make them more accountable to, and representative of, the farmers who pay for the programs. These congressionally authorized programs create boards and councils, made up of agricultural producers, which have the authority to assess a mandatory fee on producers to pay for the costs of board or council sponsored self-help promotion activities. Agricultural promotion programs are designed to allow producers to engage in self-help initiatives to promote their products to the consumer, to enhance demand and ultimately improve the economic security of farmers paying the assessment. It is hard to argue with that basic goal, Mr. President. These programs are fully funded and managed by farmers, with oversight conducted by the Department of Agriculture. The boards or councils authorized by Congress collect the producer funds and then conduct generic promotion activities for the specific commodity by contracting out the specific advertising and research projects to private entities. While some of these programs have existed for nearly 30 years, the majority were created and implemented in the last 10 years. In fact, since 1982, when national promotion programs collected just $45 million annually, the amount of money collected under mandatory promotion programs has increased ten-fold. These programs currently cover about 16 agricultural commodities including milk, beef, pork, eggs, soybeans, cotton as well as many specialty commodities. All totalled these programs collect roughly $500 million annually from producers and processors of commodities. According to USDA, 90 percent of all U.S. producers contribute money for promotion programs, either State or federally authorized. The growth in the number of these programs in the last decade is not surprising. As Federal dollars to support agriculture dwindle due to budget constraints, Congress has stood ready to allow producers to engage in these self-help efforts. I understand that when the Congress addresses omnibus farm legislation either this year or next year, that my colleagues and I will be asked to approve additional commodity promotion programs for popcorn, canola and rapeseed and perhaps other commodities as well. But Mr. President, while the goals of these programs are truly admirable, I am concerned that some of the issues raised by some farmers with respect to these programs have been swept away in the Congressional tide to approve more and more producer-supported checkoff programs. Congress has approved so many of these programs in such a short period of time that we have not taken a step back to look at overall principles guiding these programs and whether or not the programs are operating as they should be. These programs are typically referred to as checkoff programs since the funds that producers must pay to the promotion boards and councils are automatically deducted from the producer's check received for commodities sold. In many cases, the checkoff is a fixed amount, such as 15 cents per hundred pounds of milk sold, or $1 per head of beef or dairy cattle sold. In other cases, the amount deducted is a percentage of the market value of the commodity sold. The checkoff payment is mandatory and essentially permanent once a majority of producers approve of the overall program in an initial referendum. To give my colleagues an idea of the scope of producer contributions, consider the annual investment of a small Wisconsin dairy farm. A milk producer with a 50 cow herd, averaging 18,000 pounds per cow per year, would pay about $1,350 annually for State, regional, and Federal milk promotion activities. Mr. President, that is a large contribution for such a small farm. Consider that a large dairy with 1,000 cows, such as those in the southwest and western regions of the country, averaging 18,000 pounds of milk per cow, contributes about $27,000 annually for mandatory milk promotion. Consider also that a dairyman who also raises hogs, replacement heifers, and soybeans would contribute to the pork, beef, and soybean promotion program. Mr. President, these mandatory contributions represent a sizable investment by the individuals required to pay them. On the surface, these programs appear well-supported by farmers and others paying the mandatory assessments. However, as I have travelled the [[Page S 18030]] countryside of Wisconsin, holding listening sessions in each of Wisconsin's 72 counties each year, I have learned that, in fact, these programs tend to be controversial among farmers in Wisconsin. In my home State, where some counties are home to more cows than people, the most controversial of the boards are the National Dairy Promotion and Research Board and the Cattlemen's Beef Promotion and Research Board. In the 103d Congress, when I served as a member of the Senate Agriculture Committee, I had the opportunity to be involved in the creation of new promotion programs as well as the modification of existing programs. I learned, Mr. President, that the controversy stemming from these programs goes well beyond the beef and dairy programs. In each case, Mr. President, when the Committee addressed promotion programs from eggs to sheep to beef, the controversy among the producers footing the bill for the program was significant. In response to some of the concerns raised by farmers, the Senate Subcommittee on Domestic and Foreign Marketing and Promotion held a hearing on the beef and dairy promotion programs. The House Agriculture Committee held a similar hearing on the beef, pork, eggs and dairy checkoff programs in the 103d Congress. The bill I am introducing today addresses the concerns that have been voiced in these hearings during my tenure on the Committee and since that time. The concerns checkoff paying farmers have raised include: The promotion programs do not provide for adequate input by,or representation of, the producers paying for the program. The programs once authorized continue into perpetuity with little opportunity for producer review or reauthorization. All but one of the existing programs are permanently authorized by Congress. In most cases concerned producers must expend their own time and resources to gather enough names on a petition--usually 10 percent of all eligible producers--in order to call for another approval referendum. In the case of the dairy promotion program, cooperatives are allowed to vote on behalf of their producers, which some farmers contend biases the referendum by drowning out the voices of dissenting producers. The promotion programs require all producers to pay for a program regardless of whether they agree with the program, whether they think the program is working, and whether they spend their own money on individual promotion efforts. The programs far too often engage in activities well beyond those intended by the producers who approved the program at its initiation. Some producers complain that broad-scale public relations work funded by checkoff dollars does little to enhance demand and far more to advance the political objectives of certain contracting organizations. Such activities may violate the prohibition on the use of checkoff funds to influence government action or policy. Last August, during the Senate subcommittee hearing mentioned previously, staff of USDA pointed out one specific promotion effort that may have entered the grey area of prohibited activities. The programs provide preferential treatment to certain industry- governed farmer organization to the exclusion of others. Some farmers contend that the ties between some promotion boards and the industry- lobbying organization are too tight and may create a conflict of interest for those boards. The programs that do provide contracts or grants to specific lobbying organizations may be indirectly supporting or subsidizing the legislative activities of that organization. This concern has been voiced by a number of members of the Senate and the House with respect to the use of Federal funds and grants provided to lobbying organizations. In fact, much time and effort has been expended in the Senate to ensure that Congressionally authorized funding is not ultimately used for lobbying activities. The concerns that farmers have raised with respect to the use of checkoff dollars are consistent with these concerns. The mandatory nature of the programs and the contractual relationship maintained by some of the boards implicate the First Amendment rights of producers who should not be required to associate with a group with whom they do not agree. In fact, some state-wide promotion programs similar to the individual promotion programs addressed in my legislation, have been successfully challenged on First Amendment grounds. Mr. President, I think these are serious concerns. The fact that these programs impose an additional targeted tax on producers purportedly for their own good, should compel the Congress to take these complaints seriously, as well. Producers initially approved all of these promotion programs based on very specific goals and with a number of requirements and constraints. As members of the body that authorized these programs, we must ensure that the initial goals of these programs are being met and that those farmers required to pay for them have assurances that the programs are operated fairly and democratically within the bounds of the statute and without bias towards or against specific segments of the taxed industry. The legislation I am introducing today will help accomplish those goals without restricting the ability of the promotion boards to accomplish their objectives of enhancing consumer demand for the commodity. The Agricultural Promotion and Accountability Act provides guidelines to promotion boards and councils on the prohibited activities with respect to lobbying and other activities intended to influence government action or policy. It makes some conforming changes to existing statutes to ensure that all promotion programs are subject to the same restrictions. The bill addresses the concern that too much money is spent on broad scale public relations work and not enough on direct promotion of the product, by limiting the types of public relations works that can be conducted. In fairness to all producers in arguably heterogenous agricultural sectors, industry image enhancement activities are prohibited. What might be a desirable image for one segment of an agricultural sector, might not be desirable for other segments of the industry. Since the checkoff assessments are levied equally on all producers, in most cases, general public relations work with checkoff funds is not an appropriate or equitable use of promotion dollars. Instead, all boards will be allowed to promote the image of the generic product itself, which is consistent with the goal of enhancing consumer demand. The bill also improves the democratic nature of promotion boards and councils by providing producers with an opportunity to reauthorize their program, on average, every 5 years. Referenda on approval or termination of the mandatory promotion programs would be held periodically to assure that producers continue to support the program in which they make substantial annual investments. During that referendum, producers will also be allowed to decide whether or not they favor instituting refunds of assessments to producers who request them. These provisions will provide the checkoff paying producer with more control over the promotion boards they fund. Additionally, producers argue that if they are allowed a regular review of their programs, the boards will be more accountable to the farmers who foot the bill. The concern about the fungibility of checkoff dollars paid in contracts to industry-governed lobbying organizations is perhaps one of the most difficult issues to address. It is, of course, not a new issue. In fact, just 3 years ago, Secretary of Agriculture Dan Glickman, then a member of Congress, stated in a promotion program oversight hearing that ``Congress should not be in the business of enacting programs which will result in the collection of funds from all farmers for the benefit of lobbying groups which may represent the view of just a fraction of the farmers.'' As I stated earlier, that is exactly what some producers contend is happening under some of the agricultural promotion programs. To address those concerns the Agricultural Promotion Accountability Act creates a number of safeguards to ensure the independence of the boards from their contractors, to avoid conflicts of interest between the board and any contractor or grantee, to ensure [[Page S 18031]] that contracts are let on both an equitable and efficient basis providing a voice for all check-off paying producers, and to safeguard against any checkoff dollars being used for prohibited activities. Mr. President, I think the modest changes this legislation makes to promotion programs will go a long way to ensure the continued productivity and success of these promotion boards while providing producers a greater voice in how their money is spent. I urge my colleagues to support this legislation. I ask unanimous consent that a letter of support for the Agricultural Promotion Accountability Act from the National Farmers Union be included in the Record. I ask unanimous consent that the text of the legislation be printed in the Record.

Mr. FEINGOLD

Mr. FEINGOLD. I, too, am pleased that this bill contains a requirement for the development of a national standard for cryptosporidum. Several times this Congress, I have raised the issue that the cryptosporidum outbreaks are no longer Milwaukee's problem, but the country's problem, and that there should be action to ensure that enforceable national requirements are developed. However, relative to the bill's provisions that create a new petition program for voluntary sourcewater protection, I share the concerns of the senior Senator from Wisconsin, [Mr. Kohl]. I want to be certain that Wisconsin is not penalized for the actions it has already taken to protect source water. As mentioned by the senior Senator from Wisconsin [Mr. Kohl] our State's efforts to protect source waters from contaminated runoff centers around the Wisconsin Nonpoint Source Water Pollution Abatement Program, often referred to as the priority watershed program based upon its watershed approach to controlling polluted runoff. The program provides grants to local units of government in urban and rural watersheds, which reimburse up to 70 percent of costs associated with installing best management practices. By the end of 1994, the State has been actively engaged in 67 projects, including 4 large-scale and 3 lake initiatives, and more than 82 large- scale projects are eligible to participate in the program. Our State's program follows an extensive land use inventory and water resource appraisal process, and public participation is a critical component of the program. By in large participation has been voluntary, but the State does retain the authority to require participation after the protection plan is developed. I concur in the importance of assuring that this bill allows Wisconsin's current program to access the SRF and appreciate the statements made by the floor managers to that effect. stage i rulemaking

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, during this budget debate, it became quite clear that Republican's rhetoric about less Government, less regulation, less spending, and the end of business as usual, cannot stem their rush to pass this particular budget package, regardless of the contents of the package. The hypocrisy of that rhetoric was revealed during these debates, when Republicans began abandoning not only their own rhetoric, but also members of their own party in an effort to pass a budget. Mr. President, I am talking about the sequence of events that have occurred both in this Chamber and the House of Representatives on dairy policy. Actions of the Republican leadership are more significant for what they didn't do than for what they did do on dairy policy. What does this budget reconciliation bill before us do on dairy policy? Nothing, Mr. President, absolutely nothing. No savings, no reform, and clearly no courage to make the tough calls. This is inexcusable during a year in which this budget bill represents the vehicle for major reform of all agricultural programs. Dairy policy, and specifically, the Federal milk marketing order system is badly in need of reform. Federal milk marketing orders are an antiquated, overly regulatory system of setting milk prices throughout the country and determining where, when, and how milk should be shipped. The system sets minimum milk prices artificially high in many parts of the country at a significant cost to both taxpayers and consumers, and to the extreme disadvantage of dairy farmers in Wisconsin and throughout the Upper Midwest, where fluid milk prices are the lowest by law. The system has distorted the market resulting in perverse economic incentives for overproduction in a sector for which the slightest oversupply can send farm-level prices plummeting. This budget bill presented an ideal and unique opportunity to both reform Federal milk marketing orders, reduce regulation and save millions in taxpayer dollars. Eliminating Federal orders while leaving a basic support system in place would have saved $669 million over 5 years, which is only about $100 million shy of the conference committee target for dairy. Instead of taking the route of terminating this system and letting the market work, the Republicans dropped the $800 million in savings the conference committee was to achieve from dairy. But, Mr. President, nothing was done, no changes were made. We are left with the status quo--the status quo that the leaders of the so- called revolution had made a commitment to end. ``We are going to end business as usual''--that is what the Republicans told the American people. Well, it is business as usual, Mr. President. That was pretty clear when the Senate took up dairy late last month. The Senate version of reconciliation not only did nothing to eliminate the inequities and regulatory burdens of Federal milk marketing orders, but actually provided for more Government regulation, more market distortion and more regional inequities. During floor action, Senators approved legislation imposing a hidden tax on dairy farmers throughout the Nation for the benefit of a few west coast States--known as class IV pooling. The Senate also approved the northeast dairy compact which was astonishing in this political climate. Some of the very Members of this body who have been decrying the consumer costs and excessive Government intervention imposed by the sugar and peanut programs, not only voted to impose a milk tax on New England consumers but also to allow six States to set minimum milk prices well above that allowed under current law. The House, after seeking some reform compromise on Federal orders, ultimately voted to eliminate them. That was certainly the wiser of the two courses, and an approach, which I ultimately endorsed following the Senate's ill-conceived actions. The Upper Midwest is harmed so badly by Federal orders, that in the absence of reform, they prefer a completely unregulated market to an overregulated one. Despite the efforts of those of us from the Upper Midwest to reform Federal orders and despite the months of effort by Congressman Gunderson, a Republican and chairman of the House Subcommittee on Dairy Policy, to terminate the program when reform efforts failed, the Republican majority took a walk on dairy policy. Congressman Gunderson worked hard to set dairy policy right. Unfortunately, in the end when it counted, Speaker Gingrich decided that political expediency was more important than supporting his chairman's package. The Republicans have abrogated their responsibilities on a tough issue. House Speaker Newt Gingrich indicated that reform of Federal Orders would be high on the Republican agenda following Thanksgiving. However, given that Speaker Gingrich was willing to forgo $800 million in budget savings in order to avoid a fight in his own party on dairy policy, I am highly skeptical that his commitment to reform is terribly strong. Mr. President, I have always said there are three avenues to restoring fairness to Wisconsin farmers: judicially--by bringing legal actions against the Department of Agriculture; legislatively--which now seems unrealistic; and administratively--through the Secretary of Agriculture's vast rulemaking authority. Several months ago, Secretary of Agriculture Dan Glickman accepted my invitation to participate in a barn meeting with dairy farmers in Greenleaf, WI. Having spent an hour and a half listening to dairy farmers, Secretary Glickman conceded that indeed Federal orders discriminate against the Upper Midwest to the benefit of dairy farmers in other parts of the country and that fluid milk prices set too high in some regions encouraged overproduction. While I have long been skeptical of the ability of the Department of Agriculture to do the right thing with respect to orders, I think the dairy farmers of Wisconsin have in Dan Glickman a Secretary who has at least been willing to admit our farmers have been justified in their cries of ``foul.'' Previous Secretaries have failed in their duties in that respect. So, today I am calling on Dan Glickman to do what Congress apparently cannot--make the changes to this antiquated program that the farmers of Wisconsin so deserve. I hope, and feel confident, that Dan Glickman has the courage that the Republican leadership lacks on this matter. I would put my colleagues on notice, however, that I am not willing to give up the fight in this Chamber. This battle for fairness is not over. And, Mr. President, if Members are not willing to compromise to achieve reform, I will seek the termination of Federal milk marketing orders.

Mr. FEINGOLD. Mr. President, I rise to express my opposition to the conference agreement on the reconciliation package, and to take particular exception to the tax cuts in that package. Mr. President, there is a great deal to dislike in the agreement, especially with respect to Medicare and Medicaid. The majority of the debate surrounding the reconciliation has concerned these two programs, and the cuts to those programs certainly merit the attention they have received. Much has been said already about the Medicare and Medicaid cuts: cuts that put the most vulnerable in our society at risk; cuts that are unnecessary to balance the Federal budget deficit. But there is little doubt that these cuts were made as a direct result of the need to fund the $245 billion tax cut. Mr. President, the advocates of the reconciliation measure call the tax cut the crown jewel of the Contract With America. Indeed, it is the $245 billion tax cut that drives the entire reconciliation package. The assurances of health care coverage for the low-income, frail elderly, disabled, pregnant women, and children--both now and in the future--has been mortgaged to pay for tax cuts. Mr. President, though I am persuaded that the nearly half a trillion dollars in cuts to Medicare and Medicaid have been made in order to fund the tax cut, some of our colleagues may take issue with that characterization. They maintain that there are other reasons to take nearly half a trillion dollars out of our health care system. And, some who make that argument may even believe it. But, Mr. President, for those who do believe that argument, there is still no defense for the fiscally irresponsible tax cuts that are included in the reconciliation agreement. Indeed, if one believes that these massive cuts are necessary in order to achieve a balanced budget, then there is no justification for supporting the $245 billion tax cut that risks achieving that balance. Mr. President, I have argued on a number of occasions that the budget plan outlined in the reconciliation measure is unsustainable. In part, this comes from the refusal to deal honestly with the American people, arguing, for example, that the $270 billion in cuts to Medicare are necessary to keep the Medicare trust fund solvent. Of course, that is nonsense. But the architects of this tax cut felt it necessary to spin this story in order to produce the cuts needed to fund the tax cut. Regrettably, the failure to be straight with the American people does more than undercut this extreme proposal. This deception will make it much more difficult for those of us who are willing to support some reasonable reforms to make our case to the Nation that we need to make changes to Medicare not only to keep the program solvent, but also as a matter of deficit reduction. Mr. President, beyond the issue of deceiving the public, this budget plan is also unsustainable because its priorities are unbalanced. A budget plan that increases Defense spending, allows special interest loopholes to continue to grow unchecked, cuts taxes by $245 billion, and does all of that while gutting our health care protections is a budget plan that does not reflect anything close to the mainstream view of the Nation. The priorities reflected in this budget are extremist, and the Nation simply will not support their ongoing implementation over the next several years. This plan will not survive its full 7-year lifetime. And I suspect, Mr. President, that it is not intended to survive those 7 years. The biggest cuts come in the latter years, sufficiently far off to allow panicked State governments to lobby for the overturn of the brutal cuts that are scheduled to descend in 2002--25 percent of the total cuts in the Senate passed bill occur in that year alone, 46 percent in the last 2 years. Mr. President, some who support this measure may believe in the brave new world it conceives. But there are others who support this measure who do not hold that view. They understand that this budget is unsustainable over the full 7 years. They may even hope that someone or something will rescue us from that last years of this budget. But if their goal is not the dawning of a new order, what is their purpose in supporting this measure? Mr. President, their goal is not a balanced budget. Their goal is a fiscally irresponsible tax cut. How else can this bill be explained? How else can one explain a $245 billion tax cut in a bill that provides for annual deficits that add $700 billion to our Federal debt? If balancing the budget were their highest priority, there would not be a $245 billion tax cut in the reconciliation package. Mr. President, supporters of the reconciliation measure had the opportunity to demonstrate that balancing the Federal books was a higher priority than providing a $245 billion tax cut. The senior Senator from West Virginia [Mr. Byrd] and I offered an amendment to the reconciliation bill during our limited debate that did nothing but strike the tax cut, lowering the bill's cumulative deficits by $245 billion. Mr. President, the change to the bill by that amendment alone would have balanced the Federal books in 2001, a year before the underlying measure. Only two of the Members who supported the reconciliation package also supported that amendment. Balanced budget, Mr. President? If supporters of the reconciliation measure really wanted to balance the budget, they would have supported that amendment. Their failure to do so is clear evidence that the $245 billion tax cut, not a balanced budget, is their highest priority. If the $245 billion tax cut were not the priority of the reconciliation bill, we would not see the $450 billion cuts to Medicare and Medicaid. If the $245 billion tax cut were not the priority of the reconciliation bill, we would not have seen the tortured, [[Page S 17295]] and even dangerous precedents set on this floor during the reconciliation debate through rulings from the Chair on what can only be called highly questionable parliamentary interpretations of budget points of order with respect to Social Security. Senate rules prevent a fuller discussion of those events. It is enough to say that the question need never have come up. We need never have risked damage to the integrity of our rules had there been a willingness to pare back this unjustifiable tax cut to 95 percent of its proposed level. The $12 billion raid on the Social Security trust fund, and the carefully scripted parliamentary exchange used to subvert our budget rules, was made necessary because of an unwillingness to lower the tax cut by so little as 5 percent. Mr. President, I understand that the conference committee found a different source of funding, making the raid on the Social Security Trust Fund unnecessary. But the damage is done. In an effort to protect the tax cut at all costs, a critical budget rule has been weakened. Though the $12 billion may have been restored to the trust fund, the integrity of the Senate's budget rules has been compromised. This is not the first assault on our budget rules in the name of cutting taxes. I am reminded in particular of the so-called dynamic scoring debate, a backdoor attempt to circumvent our budget procedures--again, done in the name of cutting taxes. Mr. President, in the name of cutting taxes, the extremists will deceive the public, compromise our budget rules, slash health care protections for the most vulnerable in society, and forsake efforts to balance the Federal budget. Mr. President, this budget is extreme. And the driving force behind its excess is the $245 billion tax cut-- a tax cut that apparently is timed to be mailed out only days before the 1996 elections. Those who want to understand this reconciliation package need look no further than the tax cuts. All other provisions flow from the assumed tax cuts. All the actions surrounding the measure flow from the assumed tax cuts. As I have noted, some who support this budget may actually endorse the measure's extremism. Others support it in spite of its extremism. But make no mistake. Those who endorse the extreme provisions in reconciliation and those who back the measure in spite of them, support the bill primarily as a vehicle to cut $245 billion in taxes. The fiscally irresponsible tax cut is the essence of this measure and it infects the entire package. I urge the President to veto this measure, so we can begin putting together a budget plan that will balance our Federal books by 2002 or sooner. A budget plan that will have enough public support to ensure that it will be sustained for the full duration. A budget plan that includes cuts to Medicare and Medicaid, but a plan that cuts smart, not one that cuts mean. A budget plan that distributes the burden of reducing the deficit fairly. One that includes the defense budget as well as our health care budget. One that includes one of the most rapidly growing areas of our Federal budget--tax expenditures. A budget plan that does not include the fiscally reckless $245 billion tax cut that jeopardizes our most important economic goal, a balanced Federal budget. Mr. President, I yield the floor. chapter 4--federal oil and gas royalties

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, I want to take a few moments to comment on what happened last night in the other body with respect to the issue of banning gifts to Members of Congress. As my colleagues will recall, we had a very spirited and very contentious debate on this issue just a few short months ago. We started with a proposal from the previous Congress, which would have banned gifts and meals from lobbyists and allowed some gifts from non- lobbyists. As a counterproposal, the distinguished Senator from Kentucky [Mr. McConnell] offered a set of rules on gifts, that most of us recognized as being not much of a reform effort. That proposal, in fact, would have allowed a Senator to accept an unlimited number of gifts under $100. By my math, if a Senator accepted a $100 gift from a single lobbyist every day of the year, that proposal would have allowed a Senator to accept $36,500 worth of gifts, at least, from a single lobbyist. Recognizing how far apart the two sides were, my friend, the distinguished Senator from Arizona [Mr. McCain] stepped forward with a thoughtful compromise, which essentially applied the executive branch gift rules to the U.S. Senate. The Senator from Arizona argued that what was good for the Secretary of State was good for a U.S. Senator, and of course, he was right. After much good-faith negotiating, we ended up with a set of new gift rules that passed this body by a vote of 98 to nothing. It was a tough, fair and bipartisan compromise. Those new rules, effective this January 1, will do the following: First, Senators will be prohibited from accepting any gift with a value of more than $50. Moreover, Senators may not accept from any single source--lobbyists or non-lobbyists--more than $100 total in gifts under $50. Gifts under $10 will not count towards this $100 annual cap. We have also banned all travel that is substantially recreational in nature, including these so-called charity trips that often double as expense-paid vacations for Members and their spouses. But the key, Mr. President, to what we did in July, was that for the first time there is an aggregate cap on how many gifts Senators can accept from a single source. They cannot accept $36,500 in gifts from a single lobbyist and they cannot be wined and dined by the same lobbyist more than a couple times a year. Last night, I am pleased to report, the House of Representatives took on the issue of banning gifts, and successfully passed legislation that on a strong bipartisan vote that will essentially ban gifts to Members of the House. Interestingly, the debate in the House was not all that different to the debate we had here in the Senate. The House began with the Senate- passed language--that was the underlying language. But much like what happened here in the Senate, there was an effort by the Gentleman from Indiana [Mr. Burton] to gut the Senate-passed language and merely provide for phantom reform. Had the Burton amendment passed, the House would have passed something that its supporters would have liked to have called a gift ban, but what in reality would have been an enshrinement of the outrageous degree of gift giving that takes place in this city. Current House rules allow Members to accept up to $250 worth of gifts from a single source. However, gifts under $100 do not count against that aggregate limit. The Burton amendment [[Page S 17357]] would have continued the current $250 cap, but would have now stated that gifts under $50 would not count against the cap. So instead of being allowed to accept at least $36,500 worth of gifts from a single lobbyist per year, a Member could have accepted at least $18,250 worth of gifts from a single lobbyist per year. For the proponents of the Burton amendment, that was their idea of reform. It would have said to the American people that it is perfectly acceptable for Members of the House to accept an unlimited number of gifts from lobbyists. Thankfully, Mr. President, the Burton amendment met the same fate as the original McConnell proposal. The Burton amendment was, in fact, obliterated on the House floor by a vote of 276-154. Republicans and Democrats alike in the House stood up and said that they were not going to continue the status quo, they were not going to snub their noses at the American people, and they were going to finally give the American people the kind of gift reform they have been asking for some time now. The House, in fact, went on to pass a watertight gift ban, one very similar to the rule of the Wisconsin State Legislature which essentially prohibits legislators from accepting anything of value. By an overwhelming bipartisan vote of 422-6, the House passed a new gift rule that is essentially a zero-tolerance rule. It prohibits the acceptance of free gifts, meals and recreational trips. There is no $10 de minimis. There is no $50 limit on single gifts and there is no $100 limit on aggregate gifts. The House, beginning January 1, will simply prohibit the acceptance of any gifts, other than those of little intrinsic value. For 20 years, Mr. President, the Wisconsin State Legislature has lived under such a zero-tolerance policy and has achieved a national reputation for its sense of ethics and integrity government. Since I came to the U.S. Senate, my office has lived under these Wisconsin rules, and we have essentially created a gift-free zone in our Senate office building. It has been our experience that it is not all that difficult to say ``no thanks" to the lobbyists. Though long overdue, this represents another step on the road to meaningful reform of our political process, and I offer my strongest praise and commendation for the actions taken by our colleagues in the House last night. As I have said countless times since I first set foot in Washington nearly 3 years ago, it is my preference that the Senate also abide by these Wisconsin-style rules. No gifts, no trips, no free meals. Those are the rules my office lives by and those are the rules that the Wisconsin Legislature has had in place for 20 years. If the Senate rules can one day be changed so we are on equal ground with the House, I will be the first to stand up and fight for such a change. But the Senate rules are tough, they are fair, and they will have a profound impact on changing the culture of special interest influence that has pervaded this institution for so many years. I want to briefly acknowledge some of my colleagues in the other body, from both sides of the aisle, who fought the good fight and were instrumental in the House's successful effort. I want to thank Congressman John Bryant for his longstanding leadership on this issue, as well as Representatives Chris Shays and Tom Barrett, who recognized how important bipartisan cooperation and compromise is to this process. Mr. President, the fight to reform the ways of Washington is far from over. The gift ban is just the first skirmish. We will insist on passage of lobbying reform legislation. We will insist that the Congress take up legislation to shut down the revolving door between public service and special access lobbying. And most important, we will insist that the Congress take up meaningful and comprehensive campaign finance reform. Like the gift rules that have now passed both the House and Senate, none of these efforts will be successful without bipartisan leadership. Reforming this institution, and working to restore the faith and trust of the American people should not be a partisan issue. It does not make you a good Democrat, or a good Republican--it simply makes you a good American.

Mr. FEINGOLD

Mr. FEINGOLD. I ask unanimous consent that Senator McCain and Senator Pell be added as cosponsors.

Mr. FEINGOLD. Mr. President, I am proud to join with my colleagues in introducing the Nigeria Democracy Act. I appreciate the statements of the Senator from Kansas and the Senator from Vermont. This tough sanctions measure comes on the heels of the chilling execution of 9 human rights activists, including renowned playwright Mr. Ken Saro Wiwa, in Nigeria on Friday, and at a time when the regime of General Sani Abacha has intensified its crackdown against its own people. The bill we are introducing today is intended to ratchet up the pressure on this brutal military regime, and improve the protection of basic human rights in Nigeria and indeed the whole region. Let this measure be a warning that if the human rights situation deteriorates-- that is, if any more political prisoners are executed, or more decrees violating basic human rights are enacted--the United States will respond with yet harsher measures, and will actively seek multilateral support from our friends and allies. The reported arrest of 9 more human rights activists peacefully protesting last week's executions is not a good sign. Mr. President, Nigeria has the potential to become a major world trading partner, and an influential member of the international community. Yet General Abacha is squandering his country with rampant corruption; brutal policies of repression and execution; and severe economic mismanagement. Some observers will say that General Abacha is simply trying to maintain the integrity of Nigeria while the country adjusts to a drastic political change. I am wholly unconvinced, however, that the murder, assault, and suppression that Abacha has engaged in will hold the country together; in fact, I believe that as a consequence of the repression, Nigeria is more likely to break out in civil war. Mr. President, I applaud the steps the administration has taken thus far on Nigeria. But I think we should take an even tougher stand with General Abacha at this point. Engagement has not worked, as witnessed in last Friday's executions. International pleas to commute the death sentences and to re-try the defendants were ignored. Faxes and phone calls from several of us introducing this bill today to Nigerian officials were never returned. I am not persuaded that engagement and dialog with Abacha has been terribly effective. The Nigeria Democracy Act will codify the sanctions already ordered by the President, and would impose further sanctions on Nigeria as well. Many of the measures suggested in this bill come from the Comprehensive Anti-Apartheid Act, which was quite successful in helping to secure democratic transition in South Africa. In fact, it was Nigeria, ironically, that led the world in sanctioning South Africa for its human rights abuses under apartheid. As the Chair has indicated, one of the toughest measures in this bill is a prohibition on new investment in Nigeria, including banning United States firms from investing in Shell Oil's ill-timed, $3.8 billion project in Bonny, Nigeria, which was reported yesterday. While I believe there are moral and strategic benefits in the United States acting unilaterally, of course, it would be better and I would prefer to see these sanctions to be applied multilaterally. Thus, our bill also directs the President to urge actively other countries to join our sanctions effort in order to promote human rights and democracy in Nigeria. Mr. President, as the Senator from Vermont suggests, perhaps we should also take a look at an oil embargo, either unilateral or multilateral, at this time. Since over 90 percent of Nigeria's foreign exchange income comes from its oil industry--and since Abacha personally benefits from most of these sales through corruption--it makes sense that an oil embargo would hit the regime hard. I am also deeply disappointed in how Shell Oil has conducted itself in the midst of this turmoil. However, there are other considerations to look at seriously as well, and over the next few weeks I will be carefully considering the intricacies and complexities of such an oil embargo proposal. For the moment, though, let me conclude by saying I believe the bill we are introducing takes a responsible approach in urging the President to build support for a multilateral oil embargo. Grassroots support for such an initiative seems to be growing. South African President Nelson Mandela, who before the executions was advocating diplomatic engagement with the Nigerians, came out yesterday in support of an oil embargo against the Abacha regime. If the situation deteriorates, we must prepare for such an action. Let me congratulate the Chair of the subcommittee, Senator Kassebaum, on her initiative. I look forward to working with my colleagues on this bill in the coming months. Our bill will not bring back Ken Saro-Wiwa and the other executed activists. But perhaps it will help create an environment in which oppression and brutality like that already exhibited will no longer be tolerated.

Mr. FEINGOLD

Mr. FEINGOLD. I ask unanimous consent that Senator McCain and Senator Pell be added as cosponsors.

Mr. FEINGOLD. Mr. President, I am proud to join with my colleagues in introducing the Nigeria Democracy Act. I appreciate the statements of the Senator from Kansas and the Senator from Vermont. This tough sanctions measure comes on the heels of the chilling execution of 9 human rights activists, including renowned playwright Mr. Ken Saro Wiwa, in Nigeria on Friday, and at a time when the regime of General Sani Abacha has intensified its crackdown against its own people. The bill we are introducing today is intended to ratchet up the pressure on this brutal military regime, and improve the protection of basic human rights in Nigeria and indeed the whole region. Let this measure be a warning that if the human rights situation deteriorates-- that is, if any more political prisoners are executed, or more decrees violating basic human rights are enacted--the United States will respond with yet harsher measures, and will actively seek multilateral support from our friends and allies. The reported arrest of 9 more human rights activists peacefully protesting last week's executions is not a good sign. Mr. President, Nigeria has the potential to become a major world trading partner, and an influential member of the international community. Yet General Abacha is squandering his country with rampant corruption; brutal policies of repression and execution; and severe economic mismanagement. Some observers will say that General Abacha is simply trying to maintain the integrity of Nigeria while the country adjusts to a drastic political change. I am wholly unconvinced, however, that the murder, assault, and suppression that Abacha has engaged in will hold the country together; in fact, I believe that as a consequence of the repression, Nigeria is more likely to break out in civil war. Mr. President, I applaud the steps the administration has taken thus far on Nigeria. But I think we should take an even tougher stand with General Abacha at this point. Engagement has not worked, as witnessed in last Friday's executions. International pleas to commute the death sentences and to re-try the defendants were ignored. Faxes and phone calls from several of us introducing this bill today to Nigerian officials were never returned. I am not persuaded that engagement and dialog with Abacha has been terribly effective. The Nigeria Democracy Act will codify the sanctions already ordered by the President, and would impose further sanctions on Nigeria as well. Many of the measures suggested in this bill come from the Comprehensive Anti-Apartheid Act, which was quite successful in helping to secure democratic transition in South Africa. In fact, it was Nigeria, ironically, that led the world in sanctioning South Africa for its human rights abuses under apartheid. As the Chair has indicated, one of the toughest measures in this bill is a prohibition on new investment in Nigeria, including banning United States firms from investing in Shell Oil's ill-timed, $3.8 billion project in Bonny, Nigeria, which was reported yesterday. While I believe there are moral and strategic benefits in the United States acting unilaterally, of course, it would be better and I would prefer to see these sanctions to be applied multilaterally. Thus, our bill also directs the President to urge actively other countries to join our sanctions effort in order to promote human rights and democracy in Nigeria. Mr. President, as the Senator from Vermont suggests, perhaps we should also take a look at an oil embargo, either unilateral or multilateral, at this time. Since over 90 percent of Nigeria's foreign exchange income comes from its oil industry--and since Abacha personally benefits from most of these sales through corruption--it makes sense that an oil embargo would hit the regime hard. I am also deeply disappointed in how Shell Oil has conducted itself in the midst of this turmoil. However, there are other considerations to look at seriously as well, and over the next few weeks I will be carefully considering the intricacies and complexities of such an oil embargo proposal. For the moment, though, let me conclude by saying I believe the bill we are introducing takes a responsible approach in urging the President to build support for a multilateral oil embargo. Grassroots support for such an initiative seems to be growing. South African President Nelson Mandela, who before the executions was advocating diplomatic engagement with the Nigerians, came out yesterday in support of an oil embargo against the Abacha regime. If the situation deteriorates, we must prepare for such an action. Let me congratulate the Chair of the subcommittee, Senator Kassebaum, on her initiative. I look forward to working with my colleagues on this bill in the coming months. Our bill will not bring back Ken Saro-Wiwa and the other executed activists. But perhaps it will help create an environment in which oppression and brutality like that already exhibited will no longer be tolerated.

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, I am voting for the House-passed continuing resolution. As we have debated this measure throughout the day, I supported various amendments which have been proposed which I think were perfectly reasonable, but now the question is whether to vote for or against this continuing resolution. The fatal flaws in the previous version have been removed. Thanks to the President's resolve, Medicare beneficiaries do not face a Medicare premium increase, and I hope and expect the President will continue to persevere with regard to the extremist reconciliation bill, which contains even greater increases for Medicare beneficiaries. Balancing the Federal budget has been my priority since first coming to the Senate, and this resolution commits us to a legislative approach to reaching that goal by 2002. I ran on that issue. I proposed an 82- plus point plan with specific, balanced cuts to achieve a balanced budget in 5 years, and I was proud to support the President's $600 billion deficit reduction package during the 103d Congress, a package that contained many of the provisions I included in my own plan. I have also been proud to participate in other deficit reduction efforts, including the bipartisan proposal put together by Senator Kerrey (D-Nebraska) and Senator Brown (R-Colorado), and the package developed under the leadership of Senator Kerry (D-Massachusets). To me, the language in this continuing resolution means no more and no less than a commitment to achieving a balanced budget by 2002 and it does so without mangling our Constitution. It does not endorse in any way the extremist reconciliation plan that will be before us shortly, a plan which is not based on the goal of a balanced budget but on the reckless, politically self-serving desire of providing a fiscally irresponsible tax cut--tax cuts apparently scheduled to be mailed to voters only days before the 1996 elections. I firmly believe there is significant bipartisan support in the Senate for a responsible budget measure that achieves a balanced budget in 7 years, or even sooner. Such a plan would reject the reckless $245 billion tax cut, make prudent reforms to our Medicare and Medicaid Programs, and would ask all areas of Federal spending to share in the burden of deficit reduction, including our military, and the special interests that benefit from the massive spending done through the Tax Code. That is the formula for a budget plan that cannot only be enacted into law, but can be sustained over the entire lifetime of the glidepath to a balanced budget. It is very much like the alternative budget plan I supported that was offered by Senator Conrad (D-North Dakota) during the budget resolution debate last spring, and is a budget I believe the President would sign. I hope we can soon begin to work toward such a budget.

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, last Friday nine leaders of the Movement for the Survival of the Ogoni People [MOSOP], including renowned playwright Ken Saro-Wiwa, were executed by the brutal Nigerian military regime. The human rights leaders and environmental activists were hanged after a blatantly unfair trial, and in the face of numerous international appeals to General Abacha to commute the death sentences. That Nigeria carried out these executions during the meeting of the Commonwealth countries in New Zealand, which they attended, is particularly chilling. What a failure of international policy toward Nigeria. This latest gross human rights violation is convincing evidence that General Abacha, the military leader who seized control of Nigeria in 1993, has no interest in overseeing a 3-year transition to genuine democratic rule as he announced in his notorious October 1 proclamation. Instead, it appears he is seeking to obliterate--by killing--any opposition that could possibly challenge his authority. The political situation in Nigeria is undoubtedly fragile and difficult. Since its independence from Britain in 1960, Nigeria has been held together by the military, and in fact it has enjoyed civilian rule for only short, punctuated periods in its entire history. Then, as the rest of Africa was sweeping toward democracy, Nigeria too held Presidential elections in 1993. They produced a major sea change in Nigerian politics when a Southern Yoruba, Moshood Abiola, was elected President, after years of domination of the political structure by northern Hausa/Fawlani. It was this shake-up that ultimately precipitated Abacha's takeover of the government in 1994. Since then, he has ruled the Government with a corrupt hand. While much of Africa is producing good news, Abacha's Nigeria stands in stark contrast. Nigeria's 110 million people live under a totalitarian regime. National and State elected officials have been removed from office, political parties dissolved, newspapers shut down, labor unions disbanded, and thousands detained for their political opinions. This summer he commuted the death sentences of General Obasanjo and others, but his mercy extended only to life imprisonment. Now Abacha has killed Ken Saro-Wiwa and some of the most well-known human rights and environmental activists, after a flagrantly unfair trial, and despite international pleas to retry the defendants. Some observers have said the executions last week were a function of a domestic military crisis where Abacha had to look strong, lest he face revolt from his own troops. While I could be sympathetic to Abacha's challenge of keeping his country together, this cannot justify nine executions: indeed, such abuse can only lead to further instability in Nigeria. The environmental and human rights movement for which Ken Saro Wiwa lost his life goes back to 1990, when the first seeds of anger against foreign oil companies began surfacing in Ogoniland. The 6 million Ogonis living among the rich swamps, fertile farmland, and gorgeous rainforests of the Niger River delta has been poor forever. But as oil companies plundered their land, seeking resources, polluting their water, uprooting the soil--leaving the Ogonis with nothing but thousands of ugly oilwells and deteriorated pipelines--the indigenous population began protesting. At first, they were peaceful demonstrations, but then Shell Oil called out the notoriously brutal police force to massacre 80 people and destroy 495 homes. The communities held Shell responsible for choosing to contact the police rather than even to begin to negotiate with them. That spawned a strong protest movement, and by 1992, when Shell still refused to engage the Ogonis, the police were once again called out, and shot 30 people. This is when Ken Saro-Wiwa founded the Movement for the Survival of the Ogoni People. In its constitution, MOSOP called for compensation for loss of their resources to Shell. MOSOP also called for self- determination of Ogoniland, the demand that made Saro-Wiwa threatening to the government. As the Ogonis were being tortured by arson, beatings, and forced resettlement by the Government, Shell Oil removed itself from responsibility and shoved the issue off as a domestic Nigerian problem, in which it could not engage. When elections were held in 1993, the Ogonis split their vote: while older more conservative folks favored Abiola, Saro-Wiwa and younger activists supported a boycott of the elections as a farce. With this display of defiance, the Nigerian military government essentially moved into occupy Ogoniland. During a public discussion on whether the Ogonis would send representatives to Abacha's constitutional conference, four Ogoni chiefs were killed. Saro-Wiwa and eight others were charged with the murder of the chiefs. Many believe Abacha used the deaths as a pretext to eliminate his most outspoken and effective opposition. A military tribunal was established especially for this trial, a tribunal which, according to State Department and other observers of this case, was neither impartial nor independent. Further, the defendants were not permitted access to a lawyer of their choice, and there is even evidence that witnesses were paid off to testify against Saro-Wiwa. After all this, there was no right of appeal. Predictably, the defendants were found guilty and sentenced to death. After a flurry of international activity, which included several phone calls and faxes to Nigerian officials from United States Senators, such as myself, which were never answered--the Provisional Ruling Council, headed by Abacha, confirmed the sentences. Once again, we called the U.N. Ambassador, appealed to our administration, wrote letters to Nigeria urging Abacha to commute the death sentences and re-try the defendants in accordance with internationally recognized human rights standards. To our shock, the executions were carried out 48 hours later. This kind of behavior, this kind of brutality is unconscionable. It calls out for a tough international response. Later this week, I will be joining a bi-partisan group of Senators in introducing sanctions legislation against Nigeria. While details are still be worked out, the bill is intended to ratchet up the pressure against General Abacha. His murderous regime must be stopped and isolated. The continued butchery of his country can only destabilize the region, harm international interests in the continent, and force suffering upon the 110 million people of Nigeria. I yield the floor.

Mr. FEINGOLD

Mr. FEINGOLD. Thank you, Mr. President. I ask unanimous consent to be allowed to speak for up to 5 minutes as if in morning business.

Mr. FEINGOLD. Mr. President, I ask unanimous consent I be recognized to speak after the Senator from North Carolina.

Mr. FEINGOLD. Mr. President, will the Senator from North Carolina yield for a moment so I can propound a unanimous consent?

Mr. FEINGOLD

Mr. FEINGOLD. Madam President, I thank the Chair and I thank the Senator from Washington. I join my colleagues from both sides of the aisle in deploring the circumstances that have brought us to this situation where the Federal Government is basically shut down because of the failure of the Congress and the White House to reach agreements over the Nation's fiscal needs. Each side of this abysmal impasse has a somewhat different perspective on where the fault lies. Ultimately, neither side can win that debate because the American public sees this kind of problem as a failure of both sides. This kind of gamesmanship simply serves to undermine public confidence in public officials, and that does not benefit the Nation either in the long term or the short term. Shutting down the Federal Government and jeopardizing the credit of the United States by allowing us to move to the brink of a default in our obligations is irresponsible. According to OMB and GAO, shutting down the Federal Government will cost the Federal Treasury millions and millions of dollars. At a time when we are working to bring down the Federal deficit, we can certainly not afford that. There is no need for this shutdown to have occurred. I must say there is no justification for trying to use emergency legislation to continue Government functions as a vehicle for extraneous policy issues, issues like weakening environmental protection laws, undermining the writ of habeas corpus, or ramming through increases in Medicare premiums. I note today some of the leadership on the other side is saying, well, this is really about a 7-year balanced budget. But the fact is the reason we are here now is not the 7-year balanced budget issue; it is inclusion of these extraneous matters that have nothing to do with balancing the budget. Congress ought to get serious and pass a clean continuing resolution and debt ceiling extension so that we can move on with the pressing business of reaching agreement on long-term deficit reduction legislation and actually achieve a balanced budget. I think the President is correct that these negotiations should take place without the threat of budget blackmail hanging over the negotiating table. We ought to be able to reach the agreements needed without this needless disruption of Government services and the undermining of public confidence. Let me also focus for a moment on what I mean by the threat of budget blackmail hanging over the negotiating table. At the heart of this impasse is an effort driven primarily by the House backers of the Republican contract to force through a budget reconciliation bill that is predicated in large part on delivering what the Speaker of the House has called the crown jewel of the Republican Contract With America, and that crown jewel is this massive tax cut. In other words, it is not just an issue of whether we should balance the budget in 7 years or earlier, with which I do agree. It is a goal on the part of those pushing that Contract With America that we balance the budget but also find enough money in there to provide a $245 billion tax cut, particularly for those in the upper income brackets. So there is no legitimacy to the claim that the dispute today is only about whether we do this in 7 years. It is about doing it in 7 years and letting these cuts occur to human service programs and safety net programs and delivering a significant tax cut to upper income folks in this society. That is what is really at stake here today. The deep cuts in Medicare and Medicaid and education and environmental protection programs and other vital domestic programs are driven by the need to provide offsets for the $245 billion tax cut which the Republican leadership seems absolutely determined to protect. I have opposed this tax cut from the beginning. It is bad economic policy, bad public policy, and bad judgment by the political leadership in Congress. There is a simple solution to this crisis. Drop the $245 billion tax cut. Use it to cut back on some of the significant cuts in Medicare and Medicaid and other programs and still balance the budget by the year 2002. That is the true answer to this dilemma, and I believe, if both parties are serious about this matter at this point, we would realize that that is the crux of the issue. A $245 billion tax cut skewed toward those in upper income brackets is not the same as saying we have to balance the budget in 7 years. That is the problem. That is what is holding this up, and that is what would solve the problem. Madam President, I will conclude by simply saying that I hope we can get a clean resolution and stop this shutdown at this point. I yield the floor. Mr. MURKOWSKI addressed the Chair.

Mr. FEINGOLD

Mr. FEINGOLD. I thank the Senator from Pennsylvania. Mr. President, I support the motion to commit this bill to the Judiciary Committee for hearings before the Senate acts upon this measure. And I want to particularly thank the senior Senator from Pennsylvania and the junior Senator from California for their leadership and courage in trying to do the right thing on this issue, making sure that there is a proper hearing in the Judiciary Committee on the matter. This bill, as it is currently drafted, would criminalize the actions of physicians who perform medical procedures which they believe may be necessary to save the life or protect the health of their patient. It is a very serious matter that the Senate ought not to act upon without deliberation and consideration. There have been no Senate hearings on this measure. The chairman of the Judiciary Committee refers to hearings on abortion as a general subject. But there have been no hearings on this particular and very difficult topic. The bill before us was simply placed on the Senate Calendar. Unfortunately, there has been a fair amount of misinformation communicated concerning the nature of the procedure being considered. There has been little focus by the proponents of the bill on the risk to the health of women if this alternative is not available, the types of health problems that compel late-term abortions in the first place, and the important question of the constitutional implications of withholding access to a procedure that may, in fact, be necessary to save the life or preserve the health of a pregnant woman facing a tragic pregnancy. Mr. President, let me stress that I have very grave reservations about the wisdom of this body acting upon a measure that would insert the Federal Government into the decisionmaking process of physicians as to what medical procedures are appropriate in a particular case. In just this last Congress we had an extensive and heated debate over whether Congress or the Federal Government ought to be designing a national health care system. Yet today many of the very same individuals who argued strenuously against the Federal Government's role in health care policy are now urging that we literally legislate the specific procedure that a doctor may choose in dealing with a very difficult and painful pregnancy. I think the decision about abortion ought to remain a private and personal decision between a woman and her doctor. I recognize that this is a tremendously divisive and emotional area. And I do respect the views of people on both sides of the issue. But, fundamentally, I do not think we should be substituting the judgment of Members of Congress for the judgment of those directly involved, particularly where issues of the life and health of the woman are at stake. Late-term abortions under Roe versus Wade can be restricted to those cases where the woman's life or health are at stake. That means that the procedures at issue take place in those most tragic circumstances where a pregnancy threatens a woman's life or health. For the Senate today to step into this area and legislate without even the benefit of hearings, where all sides of this issue can be heard, seems, to me, to be irresponsible at a minimum. It is particularly important that we exercise caution in this area that is so emotionally charged. The proponents of this measure have made assertions about the procedures at issue that have been strenuously challenged by the opponents. And the opponents have raised a number of serious issues about the circumstances under which alternative procedures will increase the risk to the woman's life or health. These are important questions that actually should be addressed before we vote. If the Senate decides to legislate in this area, it certainly ought to do so only on the basis of a significant record which thoroughly explores these issues. For example, Mr. President, we need to know what alternatives, if any, would be available to women who must have a late-term abortion. What are the increased risks for these alternative procedures for the survival of the woman or her future ability to bear children? Those are just a couple of the [[Page S 16799]] questions that, at a minimum, must be asked before the Senate acts upon this measure. It is also important that a record be developed which sets out the reason why late-term abortions are performed in the first place. It is estimated we are talking about roughly 600 abortions per year that take place under the most dire circumstances. Now, some of the proponents of this legislation have distorted the debate by asserting that the majority of late-term abortions are elective, misusing medical terminology to imply that the termination of pregnancy at this stage is somehow by choice. In fact, these abortions take place only when the life or health of the woman is at risk. We need to be fully aware of the pain and suffering that is endured by these families when a much-wanted pregnancy turns into a nightmare. We need to be careful that the Federal Government does not make these tragic situations even more difficult and painful for these families. Mr. President, let me also say that if the motion to commit this bill to the committee fails, I will support amendments to be offered that will make it clear that this legislation is not to be construed to prohibit any physician from carrying out any medical procedure which the physician in his or her medical judgment determines necessary to preserve the life or health of a woman. At a minimum, no physician should be placed in a position where he must sacrifice the life or health of his patient, because the Federal Government has chosen to substitute its judgment for professional medical judgment. I yield the floor. Mr. ASHCROFT addressed the Chair.