Russell Feingold

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, I ask unanimous consent to speak as in morning business, and the time I consume not be charged.

Mr. FEINGOLD. I thank the Chair. (The remarks of Mr. Feingold pertaining to the introduction of S. 983 are located in today's Record under ``Statements on Introduced Bills and Joint Resolutions.'') Mr. DOMENICI addressed the Chair.

Mr. FEINGOLD. Mr. President, I want to offer some comments on the conference report of the concurrent budget resolution. After several months, the blueprint for the 1996 fiscal year budget is before us. Though the specifics of that budget will take a good portion of the rest of the summer to be revealed, the budget outline before the body does give us a good idea of what the priorities of the Republican leadership are for our country. Mr. President, I share the goal of a balanced Federal budget. That has been my highest priority since first coming to the Senate. But other priorities as provided in this budget are deeply flawed, and even the broadly shared goal of a balanced Federal budget is very much at risk because of the fundamental defects of the resolution. Others have made eloquent statements about who will be shouldering the burdens imposed by this budget resolution, and the evidence is compelling that working families will bear the brunt of the cuts proposed by this budget. But perhaps as revealing of this budget's priorities as identifying where the cuts fall is to examine where they do not. While this budget cuts almost every area of the Federal budget, as it should if we are to achieve a balanced budget, three items--three sacred cows--are off the cutting table, exempted from the shared pain that is necessary to balance the budget. The first is defense spending. Far from cutting an already bloated defense budget, this resolution actually provides a $58 billion increase. [[Page S 9365]] This lavish level of spending comes despite the end of the cold war, and despite the massive reductions that are being made to the programs that provide health care to the elderly, poor, and disabled--Medicare and Medicaid. Second, this budget fails to adequately address what may be the fastest growing entitlement program in this resolution--the tax loopholes that often benefit the wealthiest individuals and corporations in this country. While this budget squeezes savings out of programs for veterans, farmers, students, and the disabled, it seems that the explosive growth in spending done through the Tax Code for the rich and powerful-- already $400 billion annually--is to remain virtually unchecked. Mr. President, the third area--the third sacred cow--is the $245 billion tax cut included in the budget. With annual budget deficits of $200 billion staring us in the face, the tax cut can only be described as reckless and fiscally irresponsible. The political calculus that produced this monstrosity could only have taken place in the murkier regions inside the Washington beltway. Certainly my constituents in Wisconsin do not buy it, and this skepticism is shared across the Nation. Poll after poll show that the American people strongly feel that reducing the deficit is more important than a tax cut. The authors of the tax cut seem to have a poor opinion of the American people. They reason that the Nation needs a bribe in order to accept the severe cuts to Medicare and other provisions of the Republican agenda. The American people want a budget that cuts fairly, that shares the pain fairly. They rightfully resent being treated like children who are promised ice cream if they eat their spinach. Mr. President, more than any other feature of this budget, the $245 billion tax cut jeopardizes our ability to reach a balanced Federal budget. This Nation has been asked to make great sacrifices in order that we might finally get our fiscal house in order. And the American people are ready to make those sacrifices. Mr. President, the American people are willing to accept cuts in even the most popular programs because they recognize the need for shared sacrifice in order to balance the Federal budget. But when they see a budget resolution that includes a $245 billion tax cut, they will rightly ask if they are being asked to sacrifice to prevent our enormous budget deficits from burdening their children and grandchildren, or to provide politically motivated tax cuts--tax cuts that will almost certainly be distributed disproportionately to the richest in our society. The great tragedy of this resolution is that it may very well squander the greatest asset we have in the fight to eliminate the deficit, namely, the willingness of the American people to share in the sacrifices needed to balance the budget. Sometimes I am amazed at the strength of character of our Nation. After the social upheaval of the 1960's, after the assault made on our Constitution during the Watergate era, after the fiscal self- indulgence of the 1980's, after the gridlock of the early 1990's, and after the failed promise to finally achieve comprehensive health care for everyone that could never be taken away, the American people are still willing to endure significant burdens to achieve a balanced budget. After all that has happened during the last 30 years to undermine their trust, they are still willing to follow leaders who ask the entire community for sacrifice. The tax cut and this budget betray that trust. It is a return to the politics of division, selfishness, and greed-- the politics of the past. I very much hope to support the individual appropriations and reconciliation bills that will come to the floor. It is through those bills that the real work of deficit reduction is done, and I want to support efforts that move us toward the goal of a balanced budget. I also recognize that the budget resolution before us is only a broad outline of how we will proceed, that nothing binds the committees to any specific action. To that end, I especially look forward to working with many of my friends on the other side of the aisle to stop this irresponsible tax cut. But I must also say that we have missed a great opportunity in this budget resolution to provide the American people with a package of spending cuts that is fair, and that achieves a balanced Federal budget, even before the year 2002 at which the authors of this budget are aiming. The flaws in this resolution are real, and they may well be insurmountable. The budget sacrifices are not distributed fairly, and the budget windfalls are given to a privileged few. The inequities are obvious and will be keenly felt. Mr. President, it need not have been that way. Mr. LOTT addressed the Chair.

Mr. FEINGOLD. Mr. President, if the Senator will yield, I believe that the budget could be balanced earlier than the Republicans say they want to balance it if we do not do this tax cut. I mentioned two other sacred cows. If we do something about the exponential growth in loopholes, tax loopholes, a 24-percent growth. There are hundreds of billions of dollars available there if we simply slow the growth--the same language the Republicans use when they talk about slowing the growth in Medicare and Medicaid. What about slowing the growth in corporate loopholes? Third, the Republican budget not only does not touch defense, it increases the Defense Department. So that is the question of priorities that the Senator from Connecticut is pointing out, and the Senator from Washington. We have here protecting defense, protecting loopholes, and protecting tax cuts as the three sacred crows that come ahead of kids and seniors and families. And that is what this budget is all about.

Mr. FEINGOLD. This is the same experience I have had in Wisconsin. I like to think the people in Wisconsin have the best common sense of any State in the 50 States. It sounds as if this common sense is everywhere. It does not matter if I go to the Rotary Club or a United Farm Workers hall or to a farm or the city, everybody is saying the same thing: We do not need this tax cut. Business people, the leading CEO's of my State, are against the tax cut. These are the people who have been the [[Page S 9364]] leading advocates many times for tax cuts. But they have the realization, because they have to meet the bottom line in their business, that it is not the right time from any point of view, economic or from the point of view of fairness, to do this. The analogy I like to use is this is kind of like a family that realized it cannot make the house payment. Things are tight. They sit down together and they figure out what they have to do to balance their home budget. They get it done, and they are happy. This is like going out an hour later and buying $10,000 worth of new furniture. That is, in effect, what this is. That is why these CEO's agree with our blue- collar people. This does not make any sense.

Mr. FEINGOLD. No, Mr. President, I believe they are the words of the Speaker of the other House. That is the most important provision--not balancing the budget, not regulatory reform, not term limits, not school prayer. The most important thing, the crown jewel, is delivering a tax cut for upper-income people. All the American people should be aware of that.

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, the legislation currently before this body, S. 240, the Private Securities Litigation Reform Act of 1995, is very important for two reasons. First, what it seeks to achieve and second, what in actuality it will achieve if passed in its current form. One of the stated purposes of this legislation is to curb abusive lawsuits--so-called strike suits where lawyers seek to get rich quick by preying on a company which suffers a loss in value. That is what this legislation seeks to do and no one can quarrel with this goal. The interests of the American people and the integrity of the American legal system are not served by meritless lawsuits which drain precious resources from our national economy. This is true not just in the context of securities fraud, but also in the areas of product liability, of medical malpractice, in short, in every field of American jurisprudence. Frivolous lawsuits should be discouraged. However, what this bill will actually do is limit the rights of investors to recover money they lose due to fraud. Unfortunately, as many of colleagues have already pointed out, this legislation fails to properly balance the goal of stopping frivolous lawsuits with the need to preserve the rights of legitimate investors to recover in cases of securities fraud. It is important to note that the laws this legislation amends, the Securities Act of 1933 and the Securities Exchange Act of 1934, were the direct result of the Great Depression. As the report to S. 240 points out--the goal of these laws was to promote investor confidence in the securities markets. Unfortunately, the legislation we are now considering will erode, not enhance, investor confidence. I want to touch briefly upon a few areas that I find particularly problematic. safe harbors for forward looking statements The pending legislation contains a so-called safe harbor provision for forward looking statements. I support the notion that full and candid disclosure regarding the potential of a given company is beneficial, not only to the potential investors but also to the companies involved. Candor, however, should not be confused with fraud. The standard established by S. 240 makes only the most blatantly fraudulent statements subject to liability. The standard of proof is so high that the private plaintiff who actually prevails will be rare indeed. I might add that the Chairman of the Securities and Exchange Commission, Arthur Levitt, in a letter dated May 25 said in regard to this provision: . . . I cannot embrace proposals which allow willful fraud to receive the benefit of safe harbor protection. The scienter standard in the amendment is so high as to preclude all but the most obvious fraud. It is one thing to protect statements that are made in good faith, without intent to defraud, it is another issue altogether to protect people based upon the standard contained in this legislation. The appropriate approach, ironically the approach contained in the original bill, is to allow the SEC to complete the rulemaking process-- to review comments and testimony--and determine the proper scope of the safe harbor. Unfortunately, this commonsense approach has given way to an expansive exemption for all but the most egregious statements. This is unfortunate. While we clearly want to protect companies from being dragged into court over every comment or remark they make, we do not and should not protect those who engage in fraud at the expense of innocent investors. This is not an either-or proposition. The language of S. 240 seems to suggest that the only way to truly protect the company is to also limit the rights of investors. I suggest this is far from the truth. The original S. 240 contained the proper approach. We should return this function to the SEC, let them do their work and adopt guidelines for a safe harbor which protects companies and investors, but not those who deal in fraud. The purpose of this legislation is to eliminate fraudulent behavior, not to protect it. statute of limitations Another area of this legislation which does a disservice to the millions of Americans who invest in securities is the failure to extend the statute of limitations from bringing an action based upon securities fraud. Under existing law, as a result of a U.S. Supreme Court ruling in Lempf versus Gilbertson, the prevailing statute of limitations is 1 year from discovery of the violation or no more than 3 years from the date of the violation. This period is far too short. The complexity of these cases necessitates an extension of this limitation. Once again, S. 240 had the proper solution when it was introduced, yet as reported, the bill sustains the woefully inadequate status quo. The original bill extended the statute of limitations to 2 years from the date of discovery and 5 years from the date of violation. The amendment of the Senator from Nevada, Senator Bryan, would have adopted this equitable standard. With the exception of criminal offenses, all causes of action in the American legal system are subject to a statute of limitations. The theory being that while we want to give plaintiffs an adequate opportunity to recover, people should not live forever under the threat of litigation. The Bryan amendment recognized this and would have achieved that important balance. The current statute of limitations goes beyond being fair to potential defendants. In fact, as Chairman Levitt pointed out in testimony, the current statute of limitations rewards those perpetrators who conceal their fraud for only 3 years. I might also note, that in regard to those handful of attorneys who thrive on frivolous litigation, the statute of limitations is of little concern. If, as we have heard during this debate, attorneys simply scan the newspapers looking for companies reporting bad news, then fill in the blanks on their boiler plate complaints and rush to the courthouse within days of the news reports, what difference does the statute of limitations make? But for the innocent investor, who is saving for retirement, or to put children through college, or maybe just trying to live a little better life, it may mean the loss of a lifetime of hard work and savings. The failure to extend the statute of limitations will result in legitimate plaintiffs, through no fault of their own, being foreclosed from any recovery. The statute of limitations does matter to the average American investor--it matters a great deal.

Mr. FEINGOLD

Mr. FEINGOLD. I ask unanimous consent to speak in morning business.

Mr. FEINGOLD. I only asked to speak in morning business for 10 minutes.

Mr. FEINGOLD. Mr. President, in light of that comment, I will defer for a few moments. And I thank the Senator from New York and the Senator from Nevada.

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

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, I would like to say a few words about what has happened with regard to the concurrent budget resolution. The Republican leadership have unveiled their final conference budget proposal. I just have to say that I am appalled at the fiscal irresponsibility that it represents. I, for one, disagree with some other Democrats in that I am glad the President came in with a budget that had a date certain for balancing the budget. I am glad that the Republicans are working on a date certain to balance the budget. I happen to think both of them wait too long. I think it can be done before the year 2000, if you really put everything on the table. I recognize that the President himself has proposed a tax cut-- certainly, a much more modest tax cut than the various Republican proposals. I happen to disagree with any tax cut at this time if we are going to balance the budget as fast as we can, Mr. President. But this agreement last night really takes the cake. It includes a massive, $245 billion tax cut--not the $50 or $60 billion the President was talking about, or $90 billion that some said the process would end up with, but really an unbelievably high figure, at a time when this country has a $5 trillion debt. A $245 billion tax cut over the next 7 years. Mr. President, such a tax cut at this time is so fiscally irresponsible as to be downright reckless. To me, Mr. President, this is not just a budget compromise, it is a compromising of the economic health of the American people. It could not come at a worse time. It could not be more irresponsible. This is a deal cut in the back room by members of one party, which sacrifices the whole principle of fiscal discipline for very shallow political ends, Mr. President. I am afraid the Senate budget conferees have totally caved in to political gamesmanship, Presidential politics, and the Contract With America. I was watching TV this morning. On the Today Show, I saw the Speaker's comment when the reporters asked him what this deal was all about. With a wink, the Speaker said, ``You are going to have more take-home pay. You will like it.'' He knows what he is doing. He is trying to tell the American people they can have their cake and eat it, too. They can have a $245 billion tax cut and a balanced budget by 2002. But the American people know better. They know that cannot be done. In fact, I would almost understand it if this deal was based on a political understanding of what the people in America really want. But I cannot find anywhere in the State of Wisconsin, which I represent, people clamoring for a tax cut. I have been watching this carefully every day since last November. The people of my State, whether Republicans or Democrats, millionaires or working-class people, are not clamoring for tax cuts. They know you cannot have a $245 billion tax cut and balance the budget by 2002 or 2005, or any time in the foreseeable future. So I find this hard to understand. It does not seem to fit politics. It certainly does not fit policy, and certainly does not fit in with our economic needs and the goal of eliminating the deficit. I remember a few months ago that the chair of the other body's Budget Committee went to a town meeting in his district, and he got confirmation that the American people in his district want a balanced budget. He said, ``You folks want a tax cut, too, do you not?'' Guess what, the crowd overwhelmingly told the budget chair in the other body they did not want a tax cut because we need to balance the budget now. Well, the chair of that committee completely ignored the wishes of the people at his town meeting, and he went ahead and joined in this deal to take $245 billion that could be used for deficit reduction and give it particularly to those who are the wealthiest among us. Mr. President, the proposed tax cut jeopardizes not only an opportunity to eliminate the Federal deficit and balance our books, it risks our Nation's economy. Mr. Greenspan and the Federal Reserve may be considering lowering interest rates because of the possibility now of some sort of recession. But a fiscally irresponsible tax cut of $245 billion could put any plans to lower interest rates on hold, and might even lead to an interest rate increase. To accommodate this unnecessary tax cut and to accommodate an unjustified increase of $58 billion, to an already bloated defense budget, this document that was cooked up in the last few days adds to defense and forces draconian cuts in the most important programs in the budget. There are stark parallels between the level of the tax cuts, also, and the proposed cuts to Medicare, Mr. President. The tax cut figure from last night is $245 billion. The Medicare cuts that the Republicans say we have to have is $270 billion. It is not hard to conclude, Mr. President, a very simple proposition: Medicare cuts are being made to fund tax cuts, especially for upper income people. I happen to be one who has said on this floor repeatedly that some cuts in Medicare can be made. Certainly, we can make some cuts in administrative aspects, in some formula-driven overpayments, and other areas. But what this tax cut means is that the very harsh Medicare cuts included in the budget agreement have to happen. They could be reduced significantly, cut in half, or almost completely eliminated, if we did not have this $245 billion tax cut. The same goes for the Medicaid cuts. There has been a lot of talk about Medicare, but what about the impact on the poor because of these $180 billion in Medicaid cuts? You could completely wipe out that cut and still have $65 billion left over if you did not do this irresponsible tax cut. The Senator from Massachusetts has prepared a list here of what the priorities really are represented by the decision to do tax cuts instead of having an earlier balanced budget while taking care of people. The priorities for the Republican agenda here with this big tax are slashing Medicare, slashing education, reducing college opportunities that are already very thin, and lowering wages for working families. Mr. President, we do not even have to have most of the Medicare cuts. We do not have to have the Medicaid cuts. We do not have to have the cuts in student loans, if we use a little willpower and resist the temptation to hand out goodies to people in the form of tax cuts they do not want anyway. Mr. President, this budget imposes devastating cuts to essential programs in order to fund increases to the defense industry. In fact, the way I like to talk about it, there are at least three sacred cows protected by this budget resolution: The first one is the tax cut; a $245 billion sacred cow that could help solve our problems and should be taken care of and eliminated. Second, corporate tax loopholes, growing at a rate of 24 percent, second only to entitlements at 27 percent, are not touched. They are completely protected by this budget resolution. Finally, almost unbelievable to my constituents, the third sacred cow--the Defense Department budget, which not only is not cut, it is actually increased. Everybody in this game at this point says, ``Gee, we have to increase the defense budget at a time when we are trying to balance the Federal budget.'' More important than Medicaid, education, and college is protecting tax loopholes, protecting tax cuts, and giving up more money to the Defense Department. Mr. President, possibly an even greater tragedy of this budget agreement is that it missed an opportunity. This compromise missed maybe the opportunity to set forth the plan to balance the budget that would have had bipartisan support in Congress, and more importantly, broad-based support from the American people. I suppose there is a tiny hope that this budget agreement still could be prevented. I do not hold much hope for it, but there is a chance, nevertheless, if we defeat this irresponsible budget agreement, we could go back to the drawing board. I know we could fashion a budget plan that would have the support of the majority of this body, and in this case the Members on both sides of the aisle. It would be a plan that could achieve a balanced budget not only by the year 2002 or 2000, but even earlier; a plan that would have a very good chance of enacting all the ensuing appropriations and reconciliation bills into law. Most importantly, Mr. President, it would be a plan that would have the support of the American people. I know the votes are there. In their hearts, I think many of my colleagues on both sides of the aisle know it, too. If the leadership would allow Senators to do it, I bet we could have a plan drawn up and passed within a week. Of course, that is almost certainly not going to happen. The leadership will not permit Members to vote their conscience. There are many Members in this body on the other side of the aisle who know and have said to me that tax cuts do not make sense at this time. Whatever happened to the charade in the Senate during the budget resolution debate? We heard Members on the other side say there is no tax cut in the budget resolution; what are you talking about? Some Members tried to point out there was a $170 billion item that said if certain things happened, we would have $170 billion available that could be used for a tax cut. On the television and on the Senate floor the fraud was perpetrated that that $170 billion was not specifically devoted to tax cuts. Some of the Members on the other side were more straightforward, including the Chair. He did not mess around. He put out an amendment that said if there is $170 billion, it shall be used for a tax cut. That at least was honest. He was not pretending. The Chair does believe in the tax cut and was straightforward about it. He had a good day yesterday. Not only did that $170 billion get locked in, he got it up to $245 billion with the help of the Members of the other body. This whole charade that was played out in the national media that the Senate Republicans were trying to fight the tax cut has been permanently put to rest. Both the other House and this body are led by folks who intend to deliver a tax cut, at the same time they are trying to tell the American people their top priority is balancing the Federal budget. Extreme elements have made it clear what happens to Members when they vote their conscience. Presidential politics has further taken a budget that is already thoroughly contaminated. But, there is still the tiniest hope. I urge my colleagues on the other side to consider that avenue. I worked on deficit reduction packages with Members of both parties, and the spirit and willingness to work together for a fair package is there. The group led by the Senator from Nebraska [Mr. Kerrey] and the Senator from Colorado [Mr. Brown] is one example of a bipartisan deficit reduction effort in which I had the chance to participate. And I am proud to be working with my good friend from Arizona, Mr. McCain, on a number of budget reforms. I know there are Members on both sides of the aisle who want to work together. I know there are Members on the Republican side who are simply embarrassed to put forward an irresponsible tax cut at this time. Mr. President, I urge them to look at this again, to consider rejecting this agreement and forcing the body to consider, instead, a responsible budget. Mr. President, we need to pull back from this tax cut. We need to make a budget that is tough, that makes justifiable cuts to all areas of Government. Mr. President, we need a budget that gets rid of this unwarranted tax cut. I yield the floor. Mr. KENNEDY addressed the Chair.

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, I would like to express my support for the confirmation of Henry Foster as Surgeon General of the United States. In making my decision to support Dr. Foster, I reflected upon many of the comments on this nomination that I have received from constituents in my home State of Wisconsin. Most Wisconsinites wish that fewer women had abortions, hope that fewer young women got pregnant unintendedly, and want sufficient access to comprehensive health care services for women and children. Dr. Foster's capabilities and accomplishments in addressing women's and community health are noteworthy. He is a respected medical educator and president of Meharry Medical School. He is the past president of the Association of Professors of Gynecology and Obstetrics, and has been a leader in addressing teenage pregnancy issues in Nashville, TN. Lastly, by all accounts, he is a sincere, compassionate, and respected gynecologist who has delivered thousands of babies and seeks quality health care for women and their families. All of us heard numerous opinions on the nomination of Dr. Foster. I have received letters from practitioners, leading medical education departments, and professional associations, and have heard nothing from the medical community which would impeach Dr. Foster's skills, abilities, and integrity. For example, when President Clinton nominated Dr. Foster, Dr. Douglas Laube, chair of obstetrics and gynecology at the University of Wisconsin-Madison wrote the President in support of that decision, and sent me a copy of his letter. Dr. Laube has personally worked with Dr. Foster for 7 years, serving on a number of national committees designed to develop the education of medical students and resident physicians in the United States. Dr. Laube writes ``Dr. Foster's commitment to medical education nationally and his activities in Tennessee underscore the efforts of an altruistic and well-intentioned person.'' He continues, ``In my personal dealings with him, and in my observations of his dealings with others, I can attest to his integrity, consistency, and dogged attention to detail. More importantly, Dr. Foster is a physician who has spent his entire career attempting to better the life of others while serving as a role model for countless medical students and resident physicians in training.'' With his profession behind him, how, then, has all this controversy over Dr. Foster arisen? In his 37 years as an obstetrician and gynecologist, despite his work to reduce teen pregnancy, sexually transmitted disease and drug abuse, and his role in delivering more than 10,000 babies, Dr. Foster has also performed some 39 abortions. I do not believe that Dr. Foster should be penalized for acting under the law. The legalization of abortion is an issue for Congress and the courts, ultimately to be decided by the American people, and currently abortion is legal in this country. I have been very concerned that individual Members are using this nomination to express their personal views about abortion. The controversy over the number of abortions Dr. Foster performed, and his recollection of that number, is really a smoke screen designed to attack and demean Dr. Foster and other health care providers who are involved in providing comprehensive women's health care. The underlying message is that one can forget holding public office as a physician if you provide health services to women that includes abortion services. As a practitioner, the decision to perform abortions is already risky enough. In January of this year, I joined my colleague, the Senator from California [Mrs. Boxer], in condemning violence at reproductive health clinics. I explained then that many of the doctors in my home State of Wisconsin have taken to wearing bullet proof vests to go to clinics to do their work. Are we now saying, that in addition to enduring the threats of stalking, bombings, and shootings, physicians like Dr. Foster must also pay the public political price of ostracism and denouncement of professional credibility? Despite the controversy surrounding his nomination, Dr. Foster conducted himself in the Labor and Human Resources Committee hearings in a manner which convinces me both of his skill as a communicator and his compassion as a practitioner. I believe he was responsive to questions asked of him, and that he clearly explained his practice record including his tenure and involvement at Meharry in Nashville, at Tuskegee in Alabama, and now on sabbatical at the Association of Academic Health Centers in Washington, DC. In sum, Mr. President, I have evaluated the entire body of Dr. Foster's record, and I believe him to be well qualified for this position. I also generally believe that the President is entitled to select key members of his administration and due deference should be paid to his choice, where the individual is qualified to serve. I will cast my vote to confirm Dr. Foster, and I admire throughout all the controversy his continued commitment and desire to serve our country in this capacity.

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, I would like to speak to one aspect of the amendment offered by the Senators from Maine and New Hampshire, the repeal of sanctions against States lacking mandatory helmet laws. I am a cosponsor of the amendment which will be offered by the Senator from Maine at a later point, which addresses only the matter of helmet laws. But regardless of the amendment, there are two fundamental questions inherent in this debate. What is the proper role of government in regulating individual behavior? And what is the appropriate role for the Federal Government in policy areas that have traditionally been under the jurisdiction of the States? There will be many issues of safety raised in this debate. In addition, the point will be made that unhelmeted motorcycle riders increase societal costs, such as the costs of publicly-funded health care. Those are legitimate issues, but I do not think they address the truly fundamental questions at stake in this debate. I think the fundamental question, the fundamental issue, is the proper role of government. The relationship between the Federal Government and the States has been a complex relationship since the founding of this Nation. The practical and legal impact of the constitutional delineation of State and Federal responsibilities is very much a subject of debate today, and especially in this 104th Congress. Mr. President, I served in the Wisconsin State Senate for 10 years and I know very well the frustration of State officials at the sometimes incomprehensible nature of the Federal bureaucracy. This much-debated relationship is frequently at issue in the discussion of Federal requirements on issues like seatbelts and helmets and speed limits. It has been the source of great controversy in my home State of Wisconsin, which does not have a mandatory helmet law. In each of the last two sessions of the Wisconsin Legislature, there have been resolutions introduced that have urged the repeal of section 153 of ISTEA, which imposes sanctions on States that do not have mandatory helmet laws. Wisconsin stands to lose an estimated $2.3 million in highway funds this fiscal year and an estimated $4.7 million in fiscal year 1996, simply because our State is not in compliance with section 153 of ISTEA. Nationally, States will lose $48 million in fiscal year 1995 and $97 million in fiscal year 1996, if this provision continues. This sanction applies, regardless of Wisconsin's efforts, which are substantial, to improve safety on its roadways. Wisconsin's Secretary of Transportation, Charles Thompson, told the National Transportation Safety Board that Wisconsin, through its program: . . . consistently and actively encourages all motorcycle riders to wear not only helmets but all protective gear through: Mandatory helmet laws for riders under 18 years of age and those with learner permits; Maintaining an award-winning rider education program which has an all-time high enrollment now of 3,500 students; Helmet surveys which show that 41 percent of riders wear helmets on a voluntary basis. So, Mr. President, among States which do not have mandatory helmet laws, Wisconsin has the lowest number of fatalities per 10,000 motorcycle registration. Perhaps more significantly, among all States, Wisconsin ranks second with respect to motorcycle fatalities per 10,000 registrations--among all States--not just those that do not have a mandatory helmet law. The National Highway Traffic Safety Administration has emphasized that State by State comparisons of motorcycle data are meaningless and that the only valid comparisons are those that compare data within an individual State over time. Let us take that test, if the previous tests are not adequate. Even under that test, Wisconsin does extremely well. Our fatality rate in motorcycle accidents has declined from 93 fatalities in 1984 to 41 in 1993. I think the reason is that the State of Wisconsin has an exemplary motorcycle safety program which has had the impact of substantially reducing the total number of motorcycle accidents by almost 50 percent--50 percent, Mr. President-- over the past 10 years. So our State of Wisconsin is understandably upset with the sanctions contained in ISTEA, given their exemplary record for motorcycle safety. The State, I think, feels discriminated against since ISTEA does not credit the State with the progress it has made with respect to reduced motorcycle fatalities. Given that the intent of ISTEA is, as I understand it, specifically to reduce fatalities, Wisconsin legislators and regulators are bewildered that there is no credit being given to them for their accomplishments. That is one of the flaws of section 153 of ISTEA. It does not recognize significant accomplishments made in improving highway safety through proactive, voluntary State efforts. I contend that a Federal mandate on helmet use is not necessary to require States to do the right thing. However, beyond the question of the proper Federal-State relationship, I would also like to focus briefly on what I believe to be an even more fundamental issue. That is the question of whether the Government has a role in regulating individual behavior that does not have a direct impact on the health or safety of others in our society. Unlike other motor safety requirements, such as traffic laws intended to keep traffic, highway traffic orderly and safe for all users, I believe helmet use only generally impacts the individual choosing to wear or not wear a helmet. Many have argued that the cost which motorcycle accidents impose on our health care system are reason enough for regulating individual behavior, but I do not really see that as a persuasive argument. Individuals in this country still have a right to engage, if they wish, in risky behavior that does not directly harm others. [[Page S 8668]] The Federal Government has not always regulated individual behavior for smoking or alcohol consumption in cases where that behavior does not affect others in our society. When it has done so, as we know with Prohibition, it has backfired. Arguably, those behaviors, such as drinking and smoking, also impose substantial costs on our health care system. However, we have generally recognized that such behavior should, in most cases, be a matter of individual choice, regardless of whether that choice is the wisest one that an individual might make. I generally object to Federal laws which regulate an individual's behavior for his or her ``own good.'' I ask my colleagues, if we regulate helmet use at the Federal level where, then, do we draw the line? Or can we draw the line? Where do we stop infringing upon an individual's right to make his or her own decisions? I contend that helmet use or lack of helmet use does not generally impact others in our society. As a strong supporter of individual rights I oppose Federal legislation requiring States, or blackmailing States into enacting helmet laws. I personally would strongly encourage all cyclists to wear helmets, as does Wisconsin's Motorcycle Safety Program. But I do not believe it is the Federal Government's role to require anyone to wear a helmet. Mr. President, the amendment to be offered by the Senators from Maine and Colorado would repeal the Federal sanctions on States which do not have mandatory universal helmet laws. It is a step in the right direction from the standpoint of individual rights and I urge my colleagues to support it. I yield the floor.

Mr. FEINGOLD. Mr. President, I would like to address the amendment before us, if someone will yield time to me?

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, I rise in opposition to the Telecommunications Competition and Deregulation Act of 1995. Mr. President, I had hoped that, following the adoption of several proconsumer amendments on the floor, that I would be able to support this legislation. I favor increased competition and deregulation of telecommunications markets because true competition benefits consumers by providing them with more choices, lower prices, and improved service. However, Mr. President, S. 652, as it was reported by the Commerce Committee, did not contain adequate assurances that the deregulation of telecommunications markets will result in true competition. And unfortunately, Mr. President, virtually all of the amendments offered on the floor to ensure that this bill would benefit users of telecommunications services were rejected by the Senate. Mr. President, I am disappointed about that turn of events because I think there was ample opportunity to [[Page S8470]] make this bill a good bill for consumers, local communities, State governments, and private businesses alike. I regret that the Senate took what should have been an opportunity to better serve consumers, and turned it into an obstacle to greater true competition in telecommunications. The amendment offered by the Senator from North Dakota, Senator Dorgan, and the Senator from South Carolina, Senator Thurmond, was among the most critical amendments offered to improve this bill. That amendment would have included in the legislation a strong decisionmaking role for the Antitrust Division of the Department of Justice in the approval of the regional Bell operating companies [RBOC's] entry into long distance telecommunications markets. It was an attempt to rectify the inadequate long distance entry provisions contained in the bill. Mr. President, while the bill did attempt to provide protections for consumers, such as the competitive checklist and the public interest test, there was still a distinct need for review by the Antitrust Division of the Department of Justice. The competitive checklist in S. 652 only ensures that certain technical and legal barriers to competition in the areas served by the Bell monopoly have been eliminated prior to the RBOC entry. This checklist does not require that competition actually exist in local markets dominated by the RBOC's before they are able to use their substantial market power to enter long distance markets. The power of the local monopoly is without equal in telecommunications markets. The advantages provided to them over those with lesser market power, fewer resources, and limited opportunities to control entry by their competitors are without bounds. We must keep in mind that competition in both local and long distance markets cannot exist when one player has substantially greater market power than his/her rivals. S. 652 also prohibits the Federal Communications Commission, the agency required to enforce the competitive checklist, from expanding on the criteria contained in the checklist. If Congress has overlooked crucial criteria with respect to barriers to entry, FCC would be unable to consider it. At the same time the bill limits FCC's role, it provides absolutely no role for the Department of Justice which is the agency responsible for the competition that exists today in long distance markets. Senators Dorgan and Thurmond worked hard to rectify that inadequacy by offering an amendment giving the Department the authority to approve individual RBOC applications to enter long distance markets. Mr. President, that crucial amendment failed. The absence of a sound antitrust review of RBOC applications to offer long distance service means there is little assurance that the benefits consumers have realized in a competitive long distance markets will not evaporate if this bill becomes law. And Mr. President, if the absence of a DOJ role did not provide adequate reason to oppose this bill, the rejection of a substantial number of basic proconsumer amendments only added to my opposition. Mr. President, this bill repealed much of the cable rate regulation established in the 1992 Cable Act, a law enacted in response to consumer outcries about skyrocketing cable rates. The Senator from Connecticut [Mr. Lieberman] offered an amendment which would have merely provided an accurate yardstick to measure whether a cable company's cable rates were out of line and should be subject to regulation. That amendment was tabled. An amendment offered by the Senator from California [Mrs. Boxer] would have provided some assurance that channels currently included as part of a consumers' basic tier cable service, which remain under Government regulation, would not be moved into more costly upper tier packages, which will be deregulated under this bill. S. 652, in its current form actually provides an incentive to move channels offered as part of a basic package into the unregulated upper tier packages for which cable companies can now charge higher rates. Senator Boxer's amendment was tabled. The Senator from Nebraska [Mr. Kerrey] offered several very good amendments on this bill. One very simple amendment would have merely required that a consumer representative sit on Federal-State Joint Board on Universal Service, the board which will study existing universal service support mechanisms and make recommendations about how to preserve and advance universal telecommunications service. It seems entirely appropriate that rural consumers be guaranteed representation on this board. Senator Kerrey's amendment was tabled. The package of leadership amendments that was approved earlier this week by the Senate eliminated virtually all restrictions on the number of radio stations one entity might own raised a number of concerns about undue market concentration in broadcasting. While I voted for that package of amendments because it contained a prohibition on cable/ telephone company cross ownership, I remained concerned about the radio ownership provisions in the package. The Senator from Illinois [Mr. Simon] attempted to increase the number of stations one entity might own by 150 percent from current law rather than lifting the restrictions entirely. His effort was designed to ensure that this bill did not actually result in less competition in radio broadcasting. His amendment was rejected. Mr. President, the list of defeated proconsumer amendments goes on. I was astonished by the rejection of some of these amendments which were intended to benefit consumers and protect them from potentially anticompetitive practices of some within the telecommunications industry. I have wondered if my colleagues have forgotten that the reason we are attempting to encourage grater competition through deregulation is to benefit consumers, not the competitors themselves. This bill might be very good for telecommunications business interests, but it is not good for consumers. In addition, Mr. President, I am very disturbed by the passage of an amendment yesterday, offered by the Senator from Nebraska [Mr. Exon] which I believe contains an unconstitutional provision. I spoke at great length yesterday about my specific concerns with that amendment. Mr. President, it is with disappointment that I must oppose S. 652. However, the outcome of the floor action on this bill, leaves me very little choice. legislative history language on ownership cap/attribution

Mr. FEINGOLD

Mr. FEINGOLD. I ask that I be yielded 5 minutes.

Mr. FEINGOLD. Mr. Krol states in his book, when explaining the technical needs of Internet users: No matter what level you're at, Internet access always comes via an access provider; an organization whose job it is to sell Internet access. He further indicates that Internet service providers are participating in a competitive market. That means the opportunity exists to solve at least part of the problem through the marketplace today, not through governmental prohibitions. None of the technical safeguards available, such as blocking software and provider screening, are perfect, but the nice thing is they do not violate the first amendment. Mr. President, I ask unanimous consent to print an article in the Record from the Wall Street Journal describing some of these technologies.

Mr. FEINGOLD. Mr. President, clearly there are ways parents can exact control over what their children can access on their home computers. It is clearly preferable to leave this responsibility in the hands of parents, rather than have the Government step in and assert control over telecommunications. Whenever there is a choice between Government intervention and empowering people to make their own decisions, we ought to try first to use the situation of the approach that involves less Government control of our lives. It is also not clear that existing criminal statutes are incapable of enforcing laws to protect children on interactive telecommunications. There have been many reports of prosecution of illegal activity related to the transmission of obscenity using interactive telecommunications. So, Mr. President, I do not even think it is clear we do not have the authority today to prosecute online obscenity. The truth is we just do not know at this point. We need more information. However, it is entirely clear to me that Congress certainly should not abridge constitutionally protected speech if there are less restrictive means of serving the compelling Government interest. To conclude, that is why I strongly support, as an alternative, the efforts of the Senator from Vermont. This amendment requires an expeditious evaluation by the Department of Justice of the technology available now to allow parents to protect their children of the first amendment. The Attorney General must also evaluate whether existing laws are adequate to enforce criminal laws governing obscenity. This study, which has to be completed within 5 months, will provide Congress with the information we need before we consider legislation. Given the first amendment issues at stake here, I believe the Judiciary Committee of the Senate should also be given an opportunity to review this matter. I do not, in theory, object to some legislation. I simply want to work with my colleagues to determine how best to protect children, while at the same time protecting the rights of Americans to free speech. I will close with these remarks from an article in the Federal Communications Law Journal by Prof. Fred Cate. In the article, he discussed how electronic communications have changed the way we communicate and have even greater potential to revolutionize communications. He stated: If 60 years of the Communications Act of 1934 has taught us nothing else, it must caution against excluding communications media from the full protection of the first amendment. To do so with today's electronic information technologies would create an exception that would make the rule of freedom of expression meaningless. Mr. President, I believe the Exon amendment, unfortunately, does create such an exception, and I urge my colleagues to oppose this language and support, as an alternative, the amendment of the Senator from Vermont. I urge my colleagues to vote accordingly when we vote. I thank the Chair and yield the floor. Mr. EXON addressed the Chair.

Mr. FEINGOLD. I thank the Chair. Mr. President, I rise in support of the amendment offered by the Senator from Vermont, and I am pleased to be a cosponsor of the amendment because I think that is the right approach. I oppose the second-degree amendment offered by the Senator from Nebraska. But I first want to applaud the Senator from Nebraska, Senator Exon, for his concern about the need to protect children from obscene and indecent material. No one has done more than he to raise the awareness of parents, educators, and legislators about the need to address the problem of materials on computer networks that may not be appropriate for children. One needs only to ``surf the net'' bulletin boards, read newspapers, periodicals, and listen to broadcast media to know that the question of obscenity and indecency on computer networks is one of the hottest topics around. The Senator for Nebraska is responsible for the debate on this important issue and I applaud his very genuine concern, his good intentions, and hard work to protect children. I have children of my own, and there are materials available through the Internet that would not be appropriate for them. Some of those materials skirt the boundaries of indecency or obscenity and other materials, while not indecent, are of an adult nature that my children may not have the maturity to understand at their age. So I, too, want to find methods to allow parents to protect their children from material on computer networks which they view as inappropriate without trampling on first amendment rights of the users of interactive telecommunications systems. I regret to say that I do not believe the Senator from Nebraska has revised the language as reflected in this second-degree amendment, which achieves that end. The Senator from Nebraska has gone a long way to revise the language of the Communications Decency Act to allay the concerns of antipornography groups, civil liberties organizations, and law enforcement officials who raised objections to the bill. His efforts to accommodate his colleagues only underscore his commitment to the welfare of our children. The language, as modified, now makes it a criminal offense, punishable by up to 2 years in prison and/or a $100,000 fine, to knowingly make, create, or solicit and initiate the transmission of, or purposefully make available any indecent--I emphasize the word ``indecent''--communication, request, suggestion, proposal, image, or other communication to a person under 18 years of age. That would appear, on its face, to be within the scope of the Government's authority to regulate indecent speech directed at minors. The Supreme Court in the Pacifica Foundation case and other decisions has made it clear that the State may well have an interest in prohibiting indecency to minors. However, I, along with my colleague from Vermont, continue to have concerns about this provision. We share the goal of this provision, but disagree on the means to achieve that end. The crux of the problem, however, is that due to the unique nature of interactive telecommunications systems, attempts to prohibit indecent speech to minors on these networks raises questions of constitutionality. The Supreme Court, in the Sable decision, made it clear that any attempts to regulate indecent communications directed at minors must take into account the medium being used and the least restrictive means to achieve the goal of prohibiting indecency to minors. Thus, under Pacifica, offensive works could be banned from radio broadcasts during certain hours because there was, in effect, no other less restrictive means of preventing minors from being exposed to such materials. In contrast, Sable struck down broad Federal legislation seeking to ban certain communication via the telephone because there were alternative, less restrictive means available. The Federal statute in the Sable case was finally upheld when it was modified to require providers of sexually explicit telephone services, the so-called Dial- A-Porn services, to adopt mechanisms such as credit card authorization or other means of verifying age to prevent minors from accessing such services. In other words, where alternative means are available to block access by minors to these services, those methods must be implemented rather than denying adults their constitutionally protected right to such material. The proposed amendment not only adopts an approach that is not the least restrictive, it has the potential to retard significantly the development of this new type of interactive telecommunications. chilling effect on cyberspace speech I am concerned that this legislation will have a chilling effect on constitutionally protected speech on interactive communication networks, potentially slowing the rapid technological advances that are being made in this new technology. Because of the unique nature of interactive telecommunications networks, prohibiting indecency to minors without impacting constitutionally protected communications between adults must be carefully tailored. One of the most popular services accessed via the Internet is USENET, a series of interactive bulletin boards, news groups, and other participatory forums which are dedicated to different topics. They are literally thousands of these groups available on computer networks and they are used widely for discussion of everything from current events such as the legislation we are discussing today to completely obscure subjects. They are used for recreation, entertainment, business, research, and many other purposes. Users participating in those newsgroups may simply read the messages or they may post their own. There is no way to know who will be reading your message. Since it is possible that any minor whose home computer can access the Internet would also have access to the public bulletin board, one could make the case that the adult posting the so-called indecent message did so knowing that a minor might see the message. Thus, if this legislation became law, an adult participant on a bulletin board who posted a profane message using some of the ``seven dirty words'' on any subject could be subject to criminal penalties of up to 2 years in prison or a $100,000 fine, if a minor might read the message posted on that bulletin board. This threat of criminal sanctions could have a dramatic chilling effect on free speech on interactive telecommunications systems, and in particular, these newsgroups and bulletin boards accessed through the Internet. Quite simply, adults will have to watch what they say on these forums. Let me provide an example of how that might occur. According to an article in the Phoenix Gazette earlier this year, a large computer bulletin board was raided by the Arizona State Department of Public Safety and the local police for providing obscene material on their service. While months later the operators of that service had not yet been charged, it was reported that ``The crackdown had a chilling effect on providers of on-line services. Within days, operators of similar boards removed obscene files or eliminated public access to them.'' Now, Mr. President, there is no issue raised when the legitimate law enforcement efforts to enforce anti-obscenity laws and ordinances have a chilling effect on the distribution of obscene materials. Under a constitutional interpretation in our country, obscenity does not have the same constitutionally protected status as nonobscene speech. However, Senator Exon's bill would likely have a chilling effect on protected speech--or speech which may be perceived to be indecent, but not obscene. Communication between adults through the Internet would likely be appropriate for children. Mr. President, that is not free speech. indecency defined by community standards Second, Mr. President, the threat of criminal sanctions despite a user's lack of control over, or knowledge of, who views his/her message, is of additional concern given that indecency is defined based on community standards. The definition of indecency for computer networks hasn't been fully explored. For broadcast media, FCC has defined indecency as ``language or material that, in context, depicts or describes in terms patently offensive as measured by contemporary community standards for broadcast medium, sexual or excretory activities or organs''--including the so- called seven dirty words. The nature of interactive telecommunications makes even the ``community standard'' and entirely different matter. As a bulletin board user you may not even be aware of who will be reading your communication, let alone where they are located for purposes of figuring out what a community standard might be. It is unclear what would constitute a community standard for indecency? Whose community? That of the initiator or that of the recipient? Will all free speech on the Internet be diminished to what might be considered decent in the most conservative community in the United States? An article in the San Diego Union-Tribune in February of this year documented a case in which a Tennessee court convicted a California couple of violating obscenity laws with their sexually explicit bulletin board based and operated in California. The jury applied the community standards of Memphis because the materials from the bulletin board were downloaded there. Again, in the case of obscenity, the community standard is of less concern because obscene speech is not protected. But in S. 652, we are prohibiting protected speech, so-called indecent speech. The uncharted community standards for indecency pose a risk that few users will be willing to bear. indecency provisions could make illegal socially valuable forums Based on the definition which has been applied to broadcast media, we could declare the content of many bulletin boards indecent--including those containing medical and academic discussions, on-line support groups where users discuss the trauma of sexual and physical abuse, or bulletin boards which contain information on sexually transmitted diseases and AIDS and how one might prevent them. Arguably, while the content is of a mature nature, these types of forums have tremendous social value. However, if minors gained access to these services, those making the indecent comment could be subject to 2 years in prison. Many of these bulletin boards for adults would simply cease to exist. Would the threat of criminal sanctions and the unclear nature of an indecency standard have a chilling effect on free speech via computer networks? I say it will. You bet it will. Adults will be forced to self-censor their words, even if they did not intend those words for children and even if they are protected by the first amendment. Mr. President, the use of computer networks holds tremendous potential for the expansion of public dialog and discourse advancing the value of the first amendment. It is an industry that is growing by leaps and bounds. The business, educational, and social welfare potential of the information superhighway is almost without limit. It would be devastating to limit the potential of this medium by taking steps that could have the effect of silencing its users. different standards for the same materials An additional concern, Mr. President, is that this legislation will establish different standards for material which appears in print and on the computer screen. The legislation would make certain individuals subject to criminal penalties if they made their materials and publications available on computer networks to which minors had access. However, that same material, the same message would be perfectly legal, and fully protected under the Constitution, in a bookstore, or a library. If a minor stumbled across, or purposefully sought, indecent materials in a bookstore and simply looked at that material, the author of that material would not be subject to criminal penalties nor would the bookstore or library that stocked the material. I urge my colleagues to keep in mind that many published works are available over the World Wide Web through the Internet. There is even a ``Virtual Library'' on the World Wide Web. Therefore it is entirely conceivable that we would have two separate standards for legality of the same works published in the print media and on electronic communications systems. Civil liberties advocates point out that under this bill it is possible that an individual who makes available electronically the novels such as ``Lady Chatterley's Lover,'' ``Catcher in the Rye'' by J.D. Salinger, or the many novels of Kurt Vonnegut such that they are potentially accessible to minors, could be subject to criminal penalties while could be found in any library and bookstore. Why the different standard? interactive media's unique technological characteristics must be considered The fundamental flaw in the language proposed by Senator Exon is that it attempts to regulate computer networks as we regulate broadcasting and telephones when it has little in common with either of them. Although the materials transmitted through interactive telecommunications systems often bear a greater resemblance to the print media, the fact remains that these interactive telecommunications systems have some entirely unique characteristics which need to be considered. It is a unique form of media posing differing challenges and opportunities. Unlike broadcast or print media, an individual on the Internet can be both a communications recipient and originator simultaneously. Congress needs to understand these differences before we can determine how best to protect children and the constitutional rights of Americans. Supreme Court Addresses Constitutionality of Content Regulation Based on Characteristics of the Medium The way in which the Supreme Court has dealt with obscenity and indecency questions as they relate to the first amendment has a lot to do with the structural characteristics of the medium in question. The Supreme Court has taken into consideration the scarcity of the medium as a public resource as well as the ability of the user to control the material he or she might view over the medium. The print media has been afforded a greater degree of first amendment protection because of the decentralized and nonintrusive nature of the medium. Newspapers are inexpensive to produce and to purchase, virtually unlimited in number, and are noninvasive--that is, it is easy for a consumer to avoid the media if they wish. Broadcasting, which uses the scarce public spectrum and which is more difficult to control from an end-user standpoint, has not enjoyed the same protection as print media. It is easier to come across indecent or offensive material while flipping through the channels on your television. Broadcast spectrum is also limited so courts have upheld content regulation to ensure that public resources furthered the public interest. Interactive communications are different, Mr. President. There is a greater ability on computer networks to avoid materials end users do not wish to receive than exists for either broadcast media or telephony, but arguably less than exists in print media. Users of the Internet and other on-line functions typically do not stumble across information, but go out surfing for materials on a particular subject. As such, they use search words, message headings, and the so-called gopher as their guide. Most newsgroups or bulletin boards that have sexually explicit materials are named such that there can be little doubt what types of materials one might encounter if you try to get into that area. Restriction of Protected Speech Justified To Serve Compelling Government Interest Only For Least Restrictive Means In addition to characteristics of scarcity and user control, the Supreme Court has allowed the abridgement of [[Page S8336]] protected speech based on certain criteria. Over the years, the Court has carefully examined two factors when determining the extent to which content shall be subject to government controls without violating the first amendment: Whether there is a compelling government interest to abridge protected speech; Whether abridgement is accomplished in the least restrictive means. Mr. President, while the Supreme Court has recognized that there may be a compelling government interest in shielding minors from indecent communications, I do not believe that the provision in the Exon bill will serve that interest in the least restrictive means. The provision, while appearing to apply only to minors, will in fact restrict the free speech of adults. The interactive electronic communications market is growing and the technology is evolving rapidly. Contrary to what others might contend, it is not clear that there are not adequate technical means available to parents and service providers to screen out objectionable material for children. There is currently software available which allows parents and employers to screen out objectionable services or newsgroups on the Internet. On-line service providers also have the ability to provide parents with a choice of what types of information their children should access. Schools and universities that provide the service of connection to the Internet can also decide which types of news groups on USENET they will make available. Carnegie-Mellon University recently made offensive-news groups less accessible to students by taking their names off their master list. I want to clarify one other technical matter. The Senator from Nebraska presented a chart which indicated that one's home computer is connected directly to the Internet. That is not always accurate, Mr. President. In many cases, users need to access first a remote computer or connect with an access provider. In some cases, that service provider is an online service, like Prodigy or America On-Line. Other services merely provide the connection services, much like a common carrier to the home users. Why is this a crucial distinction? Because it makes clear there are ways to control what one receives on a computer. Because the access provider acts as an intermediary between the user and the Internet, they can also eliminate access to certain services. Many of those Internet access providers are already recognizing the market potential of providing parents and schools with the opportunity to control the access of children to some services on the network. And I am not just talking about the big ones like Prodigy and CompuServe. I am talking about Siecom, Inc., which is an Internet service provider in Grand Rapids, MI, which supplies 20 elementary and secondary schools with restricted one-way access to USENET discussion groups through the Internet. The company does not make available the news groups on USENET which may be inappropriate for children. That company is realizing that the simple service of not providing access to all the USENET services has been a marketing advantage for them.

Mr. FEINGOLD

Mr. FEINGOLD. The amendment which I have been working on with Senator Leahy would have simply made clear that the bill before us shall not prevent a State from taking pro-competitive steps by requiring intraLATA dialing parity within markets under their regulatory jurisdiction. Mr. President, however, it is my understanding that there are a number of objections to this amendment. In response to those objections, the Senator from Vermont [Senator Leahy] and the Senator from Louisiana [Senator Breaux] have worked out a compromise which will allow the States that have already ordered intraLATA dialing parity, such as Wisconsin, as well as single LATA states to implement it despite the overall preemption contained in this bill. However, the compromise restricts companies seeking to offer competitive intraLATA toll services from jointly marketing their intraLATA toll services with their long distance services for a period of up to 3 years. There may be concerns with respect to this restriction that may need to be addressed before the legislation is enacted. I appreciate the hard work of my colleagues, Senators Leahy and Breaux in reaching this agreement. I thank them for their efforts. Exhibit 1 Public Service Commission of Wisconsin, June 12, 1995. Hon. Russell Feingold, U.S. Senator, Washington, DC. Dear Senator Feingold: I applaud your efforts to remove preemptive language from the telecommunications bill pending before the Senate. This letter is to express support for your amendment that eliminates a preemption clause that prohibits state actions that require intraLATA dialing parity. In Wisconsin, the Public Service Commission of Wisconsin has ordered full intraLATA dialing parity (1 + presubscription), and it is our belief that implementation of our orders on that issue will enhance competition and serve the public interest. It would be a disservice to the telecommunications customers of Wisconsin if federal action negated our decision on this issue. Proponents of preemption have suggested that state actions to order full dialing parity prior to federal court action allowing the entry of the Regional Bell Operating Companies (RBOCs) into the interLATA toll market would constitute a threat to universal service. This argument is simply off base. States, particularly state regulatory commissions, are inexorably attuned to the needs of the citizens of the states and are very cognizant of the need to maintain universal service. Any state commission considering an order for full dialing parity will have every opportunity to consider the costs of that decision and the related implications for universal service. The orders of the Wisconsin Commission that mandate intraLATA 1 + presubscription include a process whereby individual local exchange companies may request Commission waivers of the requirements for dialing parity implementation. This Commission will certainly consider the potential costs of dialing parity implementation and modify our requirements when it is in the best interests of the consumers. I am confident that other state commissions would give this same consideration. Further, in Wisconsin, legislation passed last summer mandates a universal service program. This Commission will be promulgating rules to assure service is available and affordable to all parts of the state and to all segments of the public. The safeguards available through that program offer further support to actions by this Commission to move forward with the introduction of competition and fair competitive service standards at a pace that is reflective of the specific needs of this state. Universal mandates or activities are being addressed in numerous other states. Those state plans should be allowed to move forward based on the respective wisdom of the state legislatures or commissions in those states. A blanket hold on all intraLATA dialing parity by Congressional fiat gives no weight to the evidence of competitive need and regulatory safeguards in any individual state. Another argument advanced by those who support preemption is that full dialing parity may cause the loss of the carrier-of-last-resort obligation by the incumbent local exchange carrier. In recent hearings in Wisconsin on this very subject, this argument was raised. It was met by a commitment from other carriers to fill that carrier-of-last- resort role if in fact the incumbent is no longer the loss of universal service because of the carrier-of-last- resort impacts is without merit. Competition is coming to the telecommunications industry. This bodes well for telecommunications customers. Federal action to stunt competition in parts of the market, while arguments are hashed out on the interLATA front, is a move in the wrong direction. State commissions should decide on the need for and pace of competition in the states. While there are many advantages to establishing a national policy on telecommunications, and many good points are spelled out in the legislation, the preemption of the states on dialing parity is not one of them. Again, I commend your attempts to rectify this portion of the pending telecommunications bill. Please contact me if you have questions on my position on this matter. This letter of support for your amendment is independent of the merits of and schedule for interLATA relief for the RBOCs. Sincerely, Cheryl L. Parrino, Chairman.

Mr. FEINGOLD. Mr. President, as an original cosponsor of the amendment filed yesterday by the Senator from Vermont [Senator Leahy], amendment number 1289, I want to discuss the important issue of intraLATA dialing parity. Mr. President, Senator Leahy's amendment was very simple. It would have merely clarified the rights of the States to implement pro- competitive measures for telecommunications markets within their State borders, a role which we have always provided to our States. As is often the case in other policy areas, many States, including Wisconsin, are ahead of the Federal Government in deregulating telecommunications markets. In the case of my State, efforts to begin deregulation of telecommunications markets have been on-going for many years, culminating in a major telecommunications bill passed by Wisconsin's State legislature last year and signed by our Governor. Unfortunately, while S. 652 has the laudable goal of increasing competition in all telecommunications markets, without the changes that the Senator from Vermont and I are promoting, it would actually cripple existing State efforts to enhance competition in markets within their own borders. The legislation would prevent States from ordering intraLATA dialing parity in local telecommunications markets until the incumbent regional bell operating company is allowed access to long distance markets. IntraLATA dialing parity is complicated phraseology for a very simple concept. Currently, for any long distance calls that consumers make within their own LATA or local access and transport area--also known as short-haul long distance--are by default handled by the local toll provider. In order to use an alternative long distance company to make a short-haul long distance call, a consumer would have to dial a long string of numbers to access that service, in addition to the telephone number they must dial. For most consumers, that is a inconvenience they simply will not tolerate and [[Page S8375]] provides an advantage to the incumbent toll provider in providing short-haul long distance. Dialing Parity already exists in interstate long distance markets, which is why any person can place a long distance call simply by dialing 1 plus the area code and phone number. The call is automatically routed through the long distance carrier the consumer has preselected. This convenience simply does not exist for consumers making short-haul long distance calls within their own LATA. Wisconsin's Public Service Commission has gone through a lengthy multi-year process examining the technical feasibility and cost of requiring dialing parity for short-haul long distance, determining whether competition would be enhanced by this type of dialing parity and whether the public interest would be served by dialing parity for short-haul toll calls. Their findings indicated that not only was intraLATA dialing parity technically feasible, it was also in the public interest. The Commission stated: IntraLATA 1+dialing parity will benefit customers and the State; will encourage the development of new products and services at reduced prices; and will result in local company provision of service more efficiently as the market becomes more competitive. In 1994, State legislation directed our Wisconsin Public Service Commission to develop rules for 1+dialing parity for intraLATA markets. The Commission has not approached this in a haphazard manner, Mr. President. In fact the Commission has established procedures whereby a provider can request dialing parity and a company asked to provide that service to request a temporary suspension from honoring the request. This provides our PSC with the opportunity to review each request on a case by case basis if necessary. Our State legislature and our Governor endorsed this process in the Telecommunications Deregulation Act passed and signed into law last summer. That legislation went far beyond the issue of dialing parity but also allowed the toll providers to use price cap regulation instead of rate of return regulation. The bill also stripped certain providers of their monopoly status to allow for greater competition in service areas to which they were not previously allowed access. This legislation was miles ahead of Federal legislation, Mr. President. Mr. President, the point of this lengthy description of Wisconsin's deregulatory process is to emphasize that the States are well qualified and experienced in deregulating telecommunications markets and are doing so in a well-reasoned and orderly fashion. Senator Leahy's amendment would have simply allowed States to continue on their path to deregulation and increased competition in telecommunications markets unhampered by the Federal Government. The amendment would have allowed the 10 States that have already ordered intraLATA dialing parity and the 13 States that are currently considering that option, to continue their efforts without being derailed by this bill. Those States may, in some instances, determine that competition will, in fact, not be enhanced by providing intraLATA dialing parity in certain markets if the incumbent toll provider is not allowed to enter long distance markets. In other cases, however, a State's Public Service Commission's deliberative process may indicate that, in other markets, dialing parity should be provided regardless of whether the incumbent toll provider has access to long distance service. The State has the expertise to examine the different competitive circumstances for individual markets and they should be allowed to do so. It is inappropriate for the Congress to attempt to preempt a State's ability to make these types of decisions. Recently, 24 Attorneys General, in a letter to Senators, stated their opposition to the preemption of State's ability to order intraLATA dialing parity. Signing that letter were State Attorneys General from Wisconsin, New Mexico, Arizona, Arkansas, Connecticut, Delaware, Florida, Illinois, Iowa, Kansas, Kentucky, Massachusetts, Minnesota, Missouri, Montana, North Dakota, Oklahoma, Tennessee, Utah, Vermont, Washington, and West Virginia, among others. I ask unanimous consent that a copy of that letter be printed in the Record. Mr. President, I also ask unanimous consent that a letter from the Chairman of the Public Service Commission of Wisconsin, Cheryl Parrino, in support of this amendment and addressing the issue of Universal Service be printed in the Record.

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, I rise in support of the amendment offered by Senators Thurmond and Dorgan. I applaud them for their leadership in the effort to provide the Department of Justice with a strong decisionmaking role in the approval of regional bell operating company entry into long-distance telephony. The importance of this amendment is underscored by the fact that S. 652 terminates the modified final judgment which settled an antitrust case against AT&T. The MFJ provided a framework by which the regional bell operating companies could enter alternative lines of business. The Department of Justice has had an integral role in protecting consumers by applying the 8(c) test to the RBOC application for a waiver to enter into restricted lines of business. The Department of Justice has ensured that the RBOC's could not use their monopoly power to impinge upon the competition that has developed in long distance. However, S. 652 vitiates the MFJ without providing any substantial safeguards for consumers. Had it not been for the antitrust efforts of the Department of Justice, which have been consistent through both Republican and Democratic administrations over the last 25 years, we would not have the competitive environment which exists today in long distance. DOJ has been the watchdog for consumers in telecommunications and that is because antitrust laws are intended to be pro-competition and pro- consumer. I urge my colleagues to keep in mind that antitrust laws exist not for the benefit of the competitors but for the benefits which true competition yields to consumers. Now, as Congress is working toward deregulating telecommunications markets we must keep in mind that true competition will not prevail if one group of players hold all the cards. The power of the local monopoly is without equal in telecommunications markets. The advantages provided to them over those with lesser market power, fewer resources, and limited opportunities to control entry by their competitors are without bounds. As we speak of competition, we must keep in mind that competition cannot exist in markets in which one player has a substantially better hand than his rivals--particularly when those trump cards have been provided by the Federal Government in the form of regulated monopolies. The Department of Justice is the proper agency to make sure that the deck is not stacked against those attempting to compete fairly in the markets--that is to be sure that RBOC entry into long distance will not substantially lessen competition or tend to create a monopoly in any line of commerce in any section of the country. This test, as contained in section 7 of the Clayton Act, is one that has withstood the test of 80 years of antitrust law. While it is not as strong as the test currently used by the Department of Justice which I would have preferred, known as the 8(c) test, it is a sound test to determine the appropriateness of RBOC entry into long distance. Mr. President, this compromise amendment offered by my colleagues addresses many of the concerns which have been raised by the opponents of a decisionmaking role for the Department of Justice. First, by requiring the Department of Justice to complete their review and make their recommendation in 90 days from receipt of the application, the RBOC's will be assured of an expeditious review of their request. That should alleviate the concerns of those who fear that DOJ will drag their feet and impede the advancement of competitive telecommunications markets. It will also provide the RBOC's with an incentive not to submit overly broad applications that would not likely be approved. Second, by narrowing slightly the breadth of the public interest test to be conducted by the Federal Communications Commission, the amendment offered by Senators Thurmond and Dorgan should also assuage the concerns of the RBOC's who claim that a Department of Justice would only duplicate the efforts of FCC. Mr. President, I also reject the notion that the Department of Justice should only become involved after the damage has been done. Some contend that the appropriate role of the Department of Justice is only to take antitrust actions against those engaging in anticompetitive behavior. That is, we should have more litigation tying up the resources of our Federal courts. I find that argument astonishing in a year in which so many of my colleagues are seeking legislation which attempt to reduce unnecessary litigation. Mr. President, if litigation resulting from inadequate preventative measures is not unnecessary litigation I don't know what types of lawsuits might be categorized unnecessary. Mr. President, I continue to support the initial amendment offered by my colleagues from North Dakota which would have used a stronger test to ensure there is no possibility that a monopolists could use its power to impede competition in the market it seeks to enter. However, the compromise they have presented is a far more appealing than S. 652 in its current form which reverse the progress we have made toward greater competition in long distance over the last 25 years. The amendment before us employs a time-tested standard from the Clayton Act which should ensure that consumers are protected while RBOC's receive the expeditious review they seek without unnecessary duplication of the functions of the FCC. I ask unanimous consent that a letter from the Wisconsin's attorney general, James Doyle, supporting a decisionmaking role for the Department of Justice be printed in the Record. Mr. President, this is a sound compromise and I urge my colleagues to support it.

Mr. FEINGOLD

Mr. FEINGOLD. That is right.

Mr. FEINGOLD. Mr. President, I wish to speak on the bill on the habeas corpus issue. I rise today to speak against provisions in S. 735 that are characterized as reforms in the habeas corpus appeals process. These items that are being referred to as reforms, in my view, would hasten the implementation of the death penalty and might well have the result of rushing innocent people to executions. This is not, strictly speaking, a debate about the death penalty itself, but about the fundamental American right of due process. Mr. President, there are several ways in which this fundamental right may be undermined by the pending bill, including the requirement that Federal [[Page S7816]] judiciary defer to State courts. This is a major departure from more than 200 years of legal precedent, and to my mind, the most egregious change proposed by habeas reform supporters. There is also a general 1-year statute of limitations--6 months in some cases--for filing a petition. These time limits fail to recognize the time needed to develop a proper habeas petition. There is also a concern which the ranking member has been discussing about the elimination of the current absolute right of petitioners in capital cases to counsel for Federal habeas corpus petitions and replacing it with a provision that leaves assignment of counsel to the discretion of the court. I understand there has been some movement on that, some progress. I am pleased to hear it and look forward to reviewing it. Mr. President, we have heard the arguments for streamlining habeas corpus procedures to limit death row appeals and implement the death penalty more quickly. On a gut level, these arguments carry power; they paint a picture of convicted criminals contemptuously manipulating our justice system to avoid punishment for heinous crimes, all the while supposedly languishing comfortably in their prison cells. The arguments remind us of the lingering pain and frustration of victims' families, who are forced to wait, sometimes for years, before they reach the end of their ordeals that began with the violent death of a loved one. The arguments also speak to the problems of clogged courts and precious resources tied up in lengthy and, perhaps, duplicative habeas proceedings. But the supporters of so-called habeas reform usually do not tell us other stories--the rest of the story. They do not tell us about innocent defendants sent to death row because they could not afford competent counsel, and because some States do not have procedures in place to provide effective counsel to indigents. They do not tell us of murder defendants watching as their attorneys fail to properly prepare and present a defense, either because they lack resources or because they themselves are indifferent, incompetent, or inexperienced. They do not tell us about innocent defendants convicted because of sloppy investigations or prosecutorial misconduct. They do not seem to take into account the amount of time it takes to properly prepare and present a habeas petition. They seem ready and willing to hasten to fatal judgment in the name of efficiency and to accept tragic mistakes as the necessary price for timely justice. I am not willing to support this haste. While I completely understand the pain of victims' families, I do not want to create more pain, and more victims of violence, by approving changes in the law that could send innocent people to their deaths. That in itself would be a dreadful crime. We must be mindful that when we change the law, it applies to all, not just to the clever manipulators of the system that supporters of the habeas reform provisions of S. 735 seem to believe fill our death rows. Consider the case of Nathaniel Carter, an innocent man wrongly convicted in 1982 of the stabbing death of his mother-in-law. Mr. Carter is a man about my age. His story was told in the New York Times and in New York Newsday this past February. Ten witnesses placed Mr. Carter miles from the murder scene at the time the crime was committed. Nonetheless, he was sentenced to 25-years-to-life for a crime he did not commit, only because New York State at that time did not have a death penalty statute. It does now, and if that statute had been in effect in 1982, the sentencing judge made it plain that it would have been imposed, on Mr. Carter, an innocent man. Mr. Carter spent 28 months in prison before being exonerated. His former wife eventually admitted committing the crime. Nathaniel Carter was lucky, but had conditions been different, his luck would not have saved him. His boyhood friend, George Pataki, now Governor of New York, earlier this year signed that State's new death penalty statute into law. It is worth considering what would have happened if Mr. Carter had faced the death penalty and if he would have faced the habeas reforms included in S. 735. He might well be dead for a crime he did not commit. So the question today is are we willing to put Mr. Carter and others like him to death for the sake of hastening other deaths of some guilty parties? The U.S. Supreme Court has handed down significant habeas decisions this year in two separate cases, decisions that should be considered in this debate. On April 19, the Court, in Kyles versus Whitley, reversed and remanded the first-degree murder conviction of a Louisiana man, Curtis Lee Kyles. Mr. Kyles was sentenced to death. After his conviction, it was discovered the State had not revealed certain evidence favorable to Mr. Kyles' case. His appeals to State courts won him a remand for an evidentiary hearing, but the State trial court afterward denied relief. He then went to the State supreme court, which denied his application for discretionary review. However, the U.S. Supreme Court ruled that Mr. Kyles was entitled to a new trial because there was a ``reasonable probability'' that the disclosure of that evidence would have produced a different result than the original conviction. Had Mr. Kyles not been able to file his Federal habeas petition, as might well be the case if we pass S. 735 with its habeas reform provisions, which include a higher bar to habeas petitions and deference to State courts, he might still be sitting in a Louisiana prison, awaiting death. Earlier this year, in January, the U.S. Supreme Court handed down its ruling in Schlup versus Delo. In that case, Lloyd Schlup, a prisoner in Missouri, was convicted of participating in the murder of a fellow inmate and sentenced to death. However, Schlup, who was filing his second habeas petition, argued his trial deprived the jury of critical evidence that would have established his innocence. The U.S. district court had denied relief, stating Mr. Schlup had not met the ``clear and convincing evidence'' standard that the habeas reform provisions of S. 735 would impose. The U.S. Supreme Court adopted a less stringent standard, that the habeas petitioner need show that the constitutional violation complained of ``probably resulted in the conviction of one who is actually innocent.'' There is a body of evidence readily available to show that putting limits on the habeas corpus process could well mean innocent people will be affected in the ultimate way. A 19-page staff report prepared last November for the House Subcommittee on the Constitution, formerly the Subcommittee on Civil and Constitutional Rights, found 52 cases in 20 years where innocent people were convicted of capital crimes and later won release, some of them by filing habeas petitions. That document, entitled, ``Innocence and the Death Penalty: Assessing the Danger of Mistaken Executions,'' might be worth reading before we decide to reform this system in this way that reminds me very much of something that is quite the opposite of reform. At one point, the report states: These 52 cases illustrate the flaws inherent in the death sentencing systems used in the states. Some of these men were convicted on the basis of perjured testimony or because the prosecutor improperly withheld exculpatory evidence. In other cases, racial prejudice was a determining factor. In others, defense counsel failed to conduct the necessary investigation that would have disclosed exculpatory information. I would also call to the attention of my colleagues a Yale Law School Journal piece entitled, ``Counsel for the Poor; the Death Sentence Not For The Worst Crime But For The Worst Lawyer,'' published in May 1994, by Stephen Bright, the director of the Southern Center for Human Rights, based in Atlanta, GA. Mr. Bright's piece is a sobering, I might even say chilling description of problems encountered by defendants in capital cases. Mr. Bright points out instances of States not providing sufficient resources to assigned defense counsel for proper investigation of a case. Compared to the resources available to an aggressive prosecutor, a defendant can [[Page S7817]] begin with a significant disadvantage in a life-or-death fight. Mr. Bright also describes cases of professional incompetence on the part of attorneys representing indigent clients in capital cases. Some of these defendants, after they were convicted and sentenced to death, were able to secure competent counsel, prove their innocence, and win just release. Capital cases are complex, and the stakes are the highest imaginable, so experienced counsel is needed to properly represent a defendant. Still, we are seeing evidence that these cases are not always tried by such experienced counsel. Imagine sitting in the defendant's chair, your life on the line, knowing you are innocent, and watching your attorney fail to conduct proper investigation, fail to call witnesses, fail to present an adequate statement to the jury. Imagine that in this country. When the day is done, that attorney walks home. You, the defendant, walk to death row. If you cannot find experienced, responsible counsel for an appeal, you walk to the gas chamber, the electric chair, or to a stark room with vials of poison to execute you. We must not forget these stories as we debate reform. Neither should we forget, in our frustration with the current system, that a habeas petitioner is not free to walk the streets while awaiting the ruling of the court. I think that is a misperception that some have. This man or woman is in prison, not sitting in a country club. Many of the stories we hear during this debate rely on their persuasive power on the grief and rage many of us feel after a brutal murder. But let me speak a word of caution to those who stir those feelings. Grief and rage are not good foundations for making good policy, and emotions that strong can lead us to bad decisions and unintended consequences, and in this case, to conclude, although it may not be very frequent and apparently is frequent enough, it literally can lead to the execution of innocent people. I urge that the habeas provisions of this bill be removed. I do not think they are appropriate to this piece of legislation. Certainly, the bill could go forward without them, and it would be a far better piece of legislation. I thank the Chair. I yield the floor. Mr. WELLSTONE addressed the Chair.