Russell Feingold

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, I appreciate the comments of the junior Senator from Massachusetts with regard to the question of including the Presidential checkoff for campaigns in the budget resolution. It is an important program for our elections being free and fair in this country, and it does not belong in the budget resolution. I intend to comment on that more as we get into the budget resolution itself. I am grateful to the junior Senator from Massachusetts for those remarks and for his constant dedication to try to do something about this really awful system of financing campaigns that we have in this country. Mr. President, I rise at this time to offer a few comments on the debate that really does belong as part of the budget resolution, and that is the debate that has been taking place about Medicare. I would like to share my own perspective on the direction we ought to pursue. As we consider the budget resolution, presumably starting next week, this will be one of the two or three most central issues that we debate. As the Senator from Nebraska [Mr. Kerrey] noted on the floor last week, the Medicare debate has been obviously politicized in quick order. That should not surprise us given the nature of the program and especially how it is viewed by millions of Americans. It is a valued program. The presence of the White House Conference on Aging last week certainly had an impact on what was said, and said by Members of both parties. Mr. President, the White House conference also gave me an opportunity--a great opportunity--to talk to many of the leading aging activists from Wisconsin on the issue. I found their thoughts interesting. I think Wisconsin has one of the best groups of advocates for sound and compassionate policies for the elderly in the country. They always give the straight view. They tell me not only what is good for the elderly but what is good for society as a whole, including their children and grandchildren. In a meeting I had with most of the Wisconsin delegates to the White House Conference on Aging, there was a clear consensus that some changes do need to be made to Medicare. But there was also agreement, Mr. President, that those changes to Medicare have to be done in a certain way. We need to ``cut smart,'' not ``cut mean,'' as we look to keep the Medicare hospital insurance fund solvent and reduce the pressure on the Federal deficit. It bears emphasizing that there are these two features with respect to the Medicare problem--both the solvency of Medicare and the impact of Medicare on the Federal budget deficit. As every Medicare beneficiary knows, there are two parts to Medicare called part A and part B. Part A is what is formally known as hospital insurance. It pays some of the costs of hospitalization, certain related inpatient care, as well as skilled nursing facility care and home health care. I should add--and I have always been somewhat distressed by this--it does not cover chronic or long-term care in that part of the program. Other than copayments and deductibles, part A services are paid from the hospital insurance trust fund, which itself is funded from payroll taxes. Mr. President, it is this hospital insurance trust fund that is in jeopardy, and it is expected to be insolvent by the year 2002. The other part of the program, part B, is the supplementary medical insurance program that covers doctors' fees, most outpatient and some other related services. Part B is partially funded by the monthly premiums that beneficiaries pay, but most of the part B program is funded from the Federal budget. Mr. President, some are characterizing the cuts they expect to propose to Medicare as being needed to keep Medicare solvent. That portrayal is entirely misleading, as, of course, it is meant to be; for though some changes are needed to keep the hospital insurance fund solvent, that trust fund is not the whole story. Medicare is also slated for cuts as part of the broader effort to reduce the deficit, possibly leading to a balanced budget. So let us be clear within this body and to all Americans, the goal here of those who want to cut Medicare drastically is not just to make the fund solvent, they want to use a lot of those billions of dollars to deal with our national deficit problem. Mr. President, I make this point because I fear that the political spin doctors who have chosen to depict Medicare cuts as being apart and separate from the rest of the budget are really doing a great disservice to the cause of deficit reduction itself. And there is no other issue I care more about or work harder on than reducing the Federal deficit. In an effort to minimize the political fallout that surely will come from cuts to Medicare, I fear they may undermine any chance for a real budget package that will achieve the consensus it must have if we are going to make the politically tough decisions needed to actually balance the Federal budget. Mr. President, my message is that we have to be honest with the American people on what is really going on with Medicare. Medicare clearly does have an impact on the budget. Part of the reason cuts are being proposed in that area does stem from our Federal budget deficit, and rightly so. Medicare does have to be on the table as we look at the budget. I will say, Mr. President, Medicare is not Social Security. It has to be considered along with other areas of Federal spending. In fact, I have sponsored legislation that has included some specific, targeted Medicare cuts. Medicare cuts were part of the 82-point plan to reduce the Federal deficit that I used and created during my campaign for the U.S. Senate in 1992. More importantly, I have voted for legislation that contained significant, but specific, targeted cuts to Medicare twice during the 103d Congress. The reconciliation legislation we passed as part of the President's deficit reduction package included nearly $60 billion in Medicare cuts. This is not some new idea. It is not as if Medicare has not already, in effect, given at the office. It has already been hit to the tune of $60 billion just 2 years ago. Mr. President, I also voted for, and was pleased to be a cosponsor of, the bipartisan Kerrey-Brown deficit reduction package. It also included significant, specific Medicare cuts on top of the $60 billion that was included in the President's deficit reduction package. Yes, Mr. President, I am willing again to vote for certain Medicare cuts if they are appropriate and do not cut at the heart of the health care of the people who need Medicare. search for ways to reduce the deficit, we have to ensure that any changes make sense both within the context of the Medicare program itself and in the broader context of our entire Federal budget. For just as Medicare clearly has an impact on the Federal deficit, Medicare beneficiaries and Medicare providers should not be asked to fund other political or policy priorities apart from the goal of reducing the Federal deficit. So I am concerned, Mr. President, that those who argue the loudest for a balanced budget tend to be the people who are the first to demand massive tax cuts and not decreases but increases in Federal spending. I do not think the use of Medicare cuts to do those two things is appropriate in the context of this budget resolution. Mr. President, I want to be one of the people on this floor to say that neither political party is blameless in this regard. Both Republicans and Democrats have argued for increased defense spending and for tax cuts at the same time they are out here promising a balanced budget and saying that their top priority is a balanced budget amendment. We cannot argue that changes to Medicare are needed to lower the deficit and then devote our very scarce resources to tax cuts and defense increases. Again, Mr. President, I am willing to support certain further cuts to Medicare to bring the Medicare trust fund into balance, and even, where appropriate, to help reduce the Federal budget deficit. That is not something I would say about Social Security. I will say it about Medicare. I am not willing to support cuts to Medicare, however, to fund an irresponsible tax cut and increase our bloated defense budget. Looking to the Medicare Program for cuts will be hard enough. It would be far better to be making changes to Medicare as part of comprehensive health care reform. In my view, Mr. President, that would be my first choice as the health care reform debate illustrated powerfully last year. The cost-shifting takes place because of Medicare, and Medicare mushrooms health care costs. Making changes to Medicare unilaterally as we apparently will do in this budget this year, outside of comprehensive reforms to the entire health care system, I am afraid invites even more of the cost-shifting. I am afraid, though, Mr. President, to be realistic, there is no sign that comprehensive health care reform will be before the Senate in the 104th Congress. That complicates the job of finding savings in Medicare and limits what to expect in the way of potential savings. Nevertheless, Mr. President, I want to say today and be specific that there are changes in Medicare that can and should be made. For example, we could consider making some changes to the Medicare home health care benefit. For example, I am willing to consider requiring a modest copayment on those home health services as long as adequate provision is made for those with lower incomes. Proposals I have seen for 20 percent copayment may be too high. Maybe they are looking at a 5-or-10-percent copayment, making sure that those who cannot afford it are taken care of. It could at least be on the table. Moreover, Mr. President--again to be specific, not just talking in the abstract about Medicare cuts--let me acknowledge that some have suggested that we might move to have a prospective payment system for home health care providers under which Medicare would reimburse services on a per episode basis. Some say that would not harm people and would be more efficient and save money. Given the dramatic rise in the number of visits per person served on the Medicare home health benefit in recent years, such a change might make sense. It certainly is something we should examine. Mr. President, I want to also remind my colleagues that a great deal of the increase in the utilization we see in the Medicare home health care benefit has been the direct result of previous policy changes to Medicare that were also supposed to create savings. It did not work that way, in part, because of changes to Medicare patients who are being discharged from hospitals quicker and sicker than they used to be. In many cases, Medicare policies have just moved the site of care from the hospital to the home, with the resulting increase in home health care benefit utilization. I am pleased that much of the care can be given in the home, but we have to be realistic about the cause and effect resulting from Medicare changes. It should serve as a caution to all as we seek to find savings in Medicare, we should not just make a cut here and find out we are paying the same or more through Medicare at another location. That does not accomplish anything either for Medicare, the people who benefit from it, or for the goal of reducing the Federal deficit. Mr. President, in other areas there may again be more room for modifications, to the way, for example, we make payments to hospitals for capital-related costs of inpatient service. Some have argued that those capital-related rates reflect erroneous inflation forecasts, and adjustments ought to be made to account for the errors. This sounds like the kind of specific cut in Medicare that does not go to the heart of Medicare, does not harm the individual's ability to get the care they need, but the inefficiency and excesses of the way the system is set up. These should be at the top of our list, not at the bottom. During last year's health care reform debate, this kind of modification was considered. I think it deserves review again. Mr. President, one change that must be a high priority also, is to ask wealthier beneficiaries to shoulder more of the cost of part B services, relieving taxpayers of some of the subsidy they are now providing, which amounts to about 75 percent of the full value of the Medicare part B premium. I proposed that in 1992 as part of my deficit reduction proposal, and I recall the comments made by the majority leader that those with higher incomes ought to be asked to pay a little more for part B services. So that should be on the table. We should also consider making changes to eliminate so-called formula-driven overpayments for hospital outpatient services. The Medicare part B copayment of 20 percent is intended to lower the cost of Medicare to taxpayers on a dollar-for-dollar basis. For every dollar of copayment made by a beneficiary, Medicare's own liability is supposed to drop by $1. It is my understanding there are anomalies in the Medicare reimbursement formula for certain outpatient hospital service. The result, Mr. President, is that the liability to Medicare is just greater than it should be. So we are talking here about real ways to save dollars to achieve our deficit reduction goals without scaring the people in this country who need the basic Medicare services, like the possible changes to inpatient capital-related payment rates. This matter was debated during the health care reform debate last session. We did not get it done. We did not get these cuts implemented. We could be getting the benefit and savings of those today if we had acted then instead of waiting until now. Some suggested we change the formula-driven overpayments. Again, I want the specific ideas on the table for the people of this Congress and for the whole country to examine. Mr. President, I am willing to consider proposals that provide incentives to seniors to select managed care alternatives. There are other changes that I would certainly be willing to consider. Mr. President, I do want to say a few other things about changes that do not make sense. Some we should not be doing. For example, shifting Medicare costs on the backs of those with very low income not only unfairly burdens those least able to bear additional costs, but, again, to the extent it swells Medicaid costs, all it will do is transfer the tax burden from the Federal taxpayers to the State taxpayers. Of course, that is a convenient result for our Federal budget writers, but not an improvement for the taxpayers back home in Wisconsin or Minnesota. Mr. President, I mentioned the Kerrey-Brown package as legislation which I supported and which also contains specific and significant Medicare cuts. As I have noted before on this floor, the process, Mr. President, the Brown of Colorado and others put together this package was, to me, a model of bipartisan cooperation. We did not hear much about it during the 1994 campaign. People assumed that everything that happens out here is partisan. But that is not what I have found. There are people in this body who do want to get together on a bipartisan basis to solve the deficit problem. They have done it. They have put a lot of time into it. They are willing to do it again. For my part, I came away from that process greatly encouraged that there were Senators on both sides of the aisle who were willing to band together to find some common ground in reducing the deficit, even if it meant bucking the partisan political rhetoric of their respective parties. Mr. President, I believe that in this 104th Congress we can achieve that kind of bipartisanship again, and I want to signal today as we move into next week of the budget resolution, that I am not only ready but very eager to participate in that bipartisan effort. I yield the floor. Mr. President, I suggest the absence of a quorum.

Mr. FEINGOLD

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

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, I rise to briefly discuss one of the more interesting--and most distressing--components of S. 565, the so- called Product Liability Fairness Act. That, Mr. President, is the conscious and flagrant expropriation of the rights of the State and local governments to fashion their own civil justice systems. Over and over in the early months of the 104th Congress we have heard the distinguished majority leader announce his intent to ``dust off the 10th amendment''. That amendment, part of the Bill of Rights and sometimes thought of as the forgotten child of the Bill of Rights, states that: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. Well, here is a power that has been reserved by the States for over 200 years. And I cannot help but note the hypocrisy present here. We have heard the thunderous voices of States rights advocates, railing against Washington bureaucrats and proclaiming that this new Congress is committed to the proposition of shifting control of policies from Washington back to the States. But then many of the same advocates of States rights also support legislation such as this that is designed to seize control over a policy area that has been the domain of the States since our Nation's founding and turn it over to 535 Members of the Congress. Make no mistake about it: Under this legislation, we are going to tell the States--even in instances where there is no Federal jurisdiction over a tort case--the parameters within which they are to conduct their judicial proceedings. That means that if a consumer in Sheboygan sues a manufacturer in Green Bay, they will have to litigate under Federal standards, such as a Federal cap on punitive damages, even though this is a completely intrastate judicial question. There is also a provision that states that a decision of a U.S. circuit court of appeals interpreting the provisions of this legislation shall be controlling precedent to be followed by each and every Federal and State court within that circuit unless overruled or modified by the Supreme Court. This provision was denounced by Stanley Feldman, chief justice of the Arizona State Supreme Court in his testimony to the Senate Commerce Committee on April 3 on behalf of the conference of chief justices. Chief Justice Feldman said that: . . . This provision will be the first time in the history of America that any Federal court has been given the authority to decide a question of State law, a subject which raises the chills on the back of every member of the conference of chief justices. What happened to the commitment of those on the other side of the aisle to return power back to the State governments? What happened to all of those criticisms we heard of health care reform and other initiatives last year where the other side derided the one-size-fits- all approach to solving problems? When I made my opening statements on this bill I mentioned a statement made by the Speaker of the House in his address to the Nation on April 7 about the intent of the congressional Republicans in the 104th Congress. The Speaker stated that: We must restore freedom by ending bureaucratic micromanagement here in Washington . . . This country is too big and too diverse for Washington to have the knowledge to make the right decision on local matters; we've got to return power back to you--to your families, your neighborhoods, your local and State governments. Mr. President, I don't say this very often, but when the Speaker of the House says: ``This country is too big and too diverse for Washington to have the knowledge to make the right decision on local matters,'' I tend to agree with him. That is precisely why I opposed last year's crime bill. Enforcement of our criminal laws is best left in the hands of our local police and sheriffs' departments, because what works and is needed in the inner city of Milwaukee is not necessarily what works and is needed in the rural confines of Rusk County. It is problematic enough for a Senator from Wisconsin to understand these regional distinctions, but to suggest that 524 Members of Congress from 49 other States will know how to address the idiosyncrasies of fighting crime in Onalaska, WI, seems a bit farfetched to me. This same principle holds true for our tort systems. Maybe one of our rural farming States has purposely fashioned their legal system so as to protect farmers from defective machinery that is commonplace in that State. Maybe another State that attracts large numbers of retired persons has used the availability of punitive damages to deter certain products from being sold that are unsafe and would disproportionately affect the elderly. The other side talks a good game when it is expressed over and over again that State legislatures and governments are best equipped to solve problems that are local in nature. But whether it is crime legislation, or civil justice reform, or even term limits, there is a clear assumption that local or private decisions are best made by those in Washington, DC. I served in the Wisconsin State Senate for over 10 years and I know how the various State legislatures around the country would react to this bill. In fact, the national conference of State legislatures strongly opposes the Product Liability Fairness Act. In a letter sent to all Members of this body, the conference states: State civil justice systems are expressions of local values and needs, as the Founders intended when they established our system of Constitutional federalism. National product liability standards put at risk this fundamental expression of self-government and federalism. Moreover, the confusion resulting from superimposing a one- size-fits-all Federal standard for product liability over existing State tort law presents a risk to the efficient administration of justice in State courts. Mr. President, I think it is abundantly clear that the notion of States' rights is about to go right out the window as we usurp over 200 years of State control over their tort systems. Another organization comprised of those who are involved in local judicial systems is the conference of State chief justices. Let me quote from a statement submitted by the chief justices expressing their opposition to Federal product liability legislation. They say; The negative consequences of S. 565 for federalism are incalculable. With the proposed legislation reaching so far into substantive civil law, States will be forced to provide the judicial structure, but will not be permitted to decide the social and economic questions in the law that their courts administer. Enactment of S. 565 would alter, in one stroke, the fundamental principles of federalism inherent in this country's tort law. . . . S. 565 is a radical departure from our current legal regime and is neither justified by experience nor wise as a matter of policy. So I think it is clear what a dramatic and radical arrogation of power this legislation represents. But even if you accept this notion that we should have Federal standards with regard to product liability actions--and I don't--but even if you do believe such standards are necessary, this legislation is light-years away from bringing any sense of uniformity to our civil justice system. The supporters of this legislation have made it clear that they believe Federal uniform standards for our product liability laws are warranted, unpredictability of our legal system. Those of us on the other side disagree. We believe the system was designed to protect innocent consumers who have been injured by defective products, and more importantly, we are reluctant to usurp the authority of the States over an area that for 200 years has been the domain of the State legislatures. As I stated earlier, many of us are also bewildered as to why some would make changes to the legal system that are opposed by the National Conference of State Legislatures, the Conference of Chief Justices, the American Bar Association and law professors throughout the country. But I think it is important to point out the great fallacy in the notion that this bill provides uniform Federal standards. It clearly does not. What it does provide, is a line in the sand. This bill says that State laws and State reforms that are designed to protect consumers, children, working people, and the elderly are no longer applicable. It says that those States do not know how to protect consumers--we here in Washington, DC know best how to do that. If you are on that side of the line in the sand, well sorry but you are out of luck because apparently it is the Congress that knows best how to protect farmers in Iowa, factory workers in Michigan, and children in California. But if you are on the other side of that line, if there are State laws or State reforms that are designed to protect the interests of the business and manufacturing communities, well those are OK. This bill says that those State legislatures know exactly what they are doing and we should not preempt any of their efforts. These are uniform Federal standards? Let me raise a couple of examples to illustrate just how unfair and unbalanced the bill is in this regard. The punitive damage cap is an obvious example. The underlying bill calls for a cap on punitive damages equal to the greater of two times compensatory damages of $250,000. In addition, under certain circumstances a judge may award supplementary punitive damages above the amount the jury has rewarded. I think the layperson would look at this provision and assume that this cap--a Federal cap of $250,000 or two times compensatory damages-- would apply across the board. In other words, whether you were injured by a defective product in Wisconsin, New York, or Mississippi and filed suit in any of those State courts, a jury would be able to award punitive damages of up to $250,000 or two times compensatory damages. Unfortunately, especially for those who support uniformity, that is not what this legislation would do. Under the now-amended bill, the punitive damage cap would not preempt, supersede, or alter any State law to the extent that such law would further limit the availability or amount of punitive damages. Those State laws would not be preempted. In other words, if a State allowed unlimited punitive damages, or even had a cap but that cap was higher than this new Federal cap, that State law would be preempted by this legislation. But if a State prohibited punitive damage awards, or had a cap lower than the cap in the underlying bill, that State law is hailed as responsible and fair and allowed to continue under this legislation. I wonder if any of my colleagues are familiar with the ``Slip 'n Slide'' case we had in Wisconsin just a few short years ago. The Slip 'n Slide is a sort of water slide that is spread out over the ground. You are supposed to get a good running start, jump head first on the wet plastic and then slide along the rest of the wet plastic. It was a product that was manufactured for families and obviously, targeted especially for children. The plaintiff in this case, a 35-year-old father of two, dove onto this water slide, struck his chin on the ground and broke his neck. He was rendered an incomplete quadriplegic. The plaintiff was unable to return to his $12,000 a year job and had no means to pay the $46,000 in medical bills he was saddled with. During the trial, the plaintiff alleged that the product was unreasonably dangerous for its intended purpose. This was compounded by the fact that the water slide's warnings were inadequate because they were not prominently displayed among the product's list of instructions and warnings. Testimony was presented showing that other users had experienced similar injuries and one individual had even died from such an accident. It was also made clear that the manufacturer continued to market the product even after it was made aware that numerous neck injuries such as this were occurring. Let me say that again; the facts showed that the manufacturer knew the product was causing neck injuries and yet still continued to market the product. The jury in this case, in a Wisconsin State court, found that the manufacturer was 100 percent at fault and awarded over $12 million to the plaintiff, including $10 million in punitive damages. This judgment was later reduced so that the plaintiff and his family in the end received about $5 million. We know what the other side's response to this is; ``$10 million? That jury must be out of control.'' Some of us, however, have faith in the ability of the American people to serve on juries and administer justice in a fair and equitable manner. You can bet, Mr. President, that the manufacturer of the Slip 'n Slide is thrilled about this legislation. Those on the other side want to insulate such companies from juries and the threat of extensive punitive damages. Why? Because such a large punitive damage award might force the manufacturer to take a product off the market that has been considerably profitable for that manufacturer. But I would contend, Mr. President, that our civil justice system is designed to do just that--to sanction parties that knowingly market a defective product and to protect the consumers that are victimized by these products. That Wisconsin jury awarded a large punitive damage award for two reasons: One, to get a dangerous product off the market that is often used by young children and that was causing numerous neck injuries and paralysis; and second, to punish the manufacturer for continuing to market the product with knowledge of its very serious defects and to deter other manufacturers from engaging in similar conduct. I would say that in this case, the jury--in a State court--knew exactly what it was doing and justice was served. Mr. President, the Wisconsin jury in this case awarded $10 million in punitive damages in the slip 'n slide case. I have no doubt that most of the proponents of this bill believe that this is a classic case of a jury run amok. Here is what I find interesting though. That jury found the manufacturer in this case 100 percent at fault. Suppose this was a criminal defendant on trial for assault with a deadly weapon. After all, the manufacturer in this case was marketing a product that they knew was causing neck injuries and paralysis. The fact is, if this had been a criminal defendant I have no doubt that there would have been a bidding war on the other side to see who could propose the stiffest criminal sentence for this defendant. We can only speculate about what the fate of the Slip 'n Slide would have been had this accident and litigation occurred in a State that currently prohibits punitive damage awards. Most likely, more neck injuries and maybe some fatalities would have occurred until a suit had been filed in a court where punitive damages were permitted. Had the underlying bill been in effect 4 years ago, that Wisconsin jury would have had to award an amount consistent with the arbitrary cap. One can only wonder if the manufacturer would have pulled this dangerous product because of a $250,000 slap on the wrist. Let me say this one more time: The jury in this case--a State jury-- found the manufacturer to be 100 percent at fault. The jury found that the manufacturer continued to market the product--a product targeted mostly at children--even after the manufacturer discovered that the product was causing numerous neck injuries and paralysis. The jury elected to award substantial punitive damages to punish the manufacturer for this reprehensible behavior similar conduct. I say to my colleagues that this is exactly what our civil justice system, grounded in the principle of trial by jury, was designed to do and I am confounded as to why the supporters of this bill are unwilling to trust those Americans that meet their civil duties by serving on juries. How troubling that at a time when Americans are so distrustful of their Government that we in Government are not willing to trust Americans to administer civil justice. Mr. President, I am somewhat mystified as to how supporters of this bill can suggest that this bill is proconsumer when they want to place this kind of a straightjacket on juries. In addition, I find it absolutely ludicrous that the supporters of this bill would suggest that we are providing uniformity when we are going to have completely different punitive damage standards throughout the 50 States. Let me provide another example of how this bill would pre-empt State laws to the extent that those laws are proconsumer. S. 565 creates a new Federal standard for the number of years a manufacturer or product seller can be held liable for a harm caused by a particular product. Known as a statute of repose, that period is 20 years under this bill. Why 20 years? Good question. The product liability legislation considered in the last Congress, written by the same two principal authors, contained a 25-year statute of repose--5 years longer. Why? Well a footnote in the committee report from last year justified 25 years by pointing out that according to testimony received by the Commerce Committee, and I quote, Thirty percent of the lawsuits brought against machine tool manufacturers involve machines that over 25 years old. Therefore, presumably, the authors of this bill selected 25 years as the life expectancy of all products manufactured in the United States. But now we have a new bill that the supporters have tried to characterize as much more moderate and much narrower than either the House-passed legal reform legislation or the product liability bill considered by the Senate just last year. But remarkably, the 25-year statute of repose has been dropped to 20 years. Why? Once again, good question. This year's committee report conspicuously leave out that footnote about the machine tool testimony, and makes absolutely no mention whatsoever as to why 20 years was selected. Instead, the committee report promotes the consistency of this statute of repose with the General Aircraft Revitalization Act of 1994, passed by this body last year. Mr. President, I voted for that legislation. But that legislation provided an 18 year statute of repose for a very narrow segment of our manufacturing base. This body came to the conclusion, the overwhelming conclusion as I recall that vote, that 18 years was a reasonable length of time for liability claims associated with the general aviation aircraft. This statute of repose, however, is entirely different. His 20-year period would apply to all durable products across the board with a few limited exceptions. Machine tools, farm equipment, football helmets-- you name it. This Congress is going to decide that the life expectancy of virtually every product in America is 20 years. But this takes us back to the issue of selective preemption of State authority over liability laws. Section 108(B)(2) reads; . . . If pursuant to an applicable State law, an action described in such paragraph is required to be filed during a period that is shorter than the 20-year period that is shorter than the 20-year period specified in such paragraph, the State law shall apply with respect to such period. In other words, if a state legislature has decided against having a statute of repose, or has decided on a statute that is longer than 20 years, this new Federal law will override the judgment of that State legislature. Again, so much for uniform Federal standards. Ironically, this year's committee report also justifies a Federal statute of repose on the basis that Japan is poised to enact a short 10-year statute of repose. So now apparently the Japanese Government knows better than the State of Wisconsin how to properly administer civil justice in cases involving Wisconsin litigants. I wonder how the Framers of the Constitution would feel about that assertion. Before I conclude my remarks, Mr. President, I would like to remind my colleagues of the giant precedent we are about to set, or the radical departure from our current system as the Chief Justices put it. This legislation would make dramatic alterations to some of the oldest and most fundamental underlying principles of our judicial system. Product liability is just a first step--the majority has made their intention clear to pursue legislation that would overhaul our entire civil justice system. As we make these sort of tremendously consequential decisions, there are a variety of groups and individuals we can seek advice from. Those of us that oppose this legislation have chosen to listen to the experts on this issue--whether it is Chief Justices, the American Bar Association or the National Conference of State Legislatures. But those who support this legislation do not want to listen to State legislators, judges or even the consumer organizations that this bill purports to protect. Instead, the other side has chosen to listen to the advice of corporate America on how to best to shield those who manufacture and sell defective products from any sort of liability. That is unfortunate for all of us. Thank you, Mr. President, and I yield the floor.

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, I add my voice of concern over the delay in action of the Federal budget. It is now May 3. That is over a month after the April 1 deadline for the Budget Committee to report a concurrent resolution on the budget. It is also nearly 3 weeks after the April 15 deadline for Congress to have completed its work on that concurrent budget resolution. I raise my concern, Mr. President, knowing that not every budget deadline has always been met, nor do I suggest that the task facing the Budget Committee is an easy one. It is a very tough one. But by this time, during the two sessions of the 103d Congress, we had considered and passed a concurrent budget resolution through the Senate. In 1994, we passed the Senate version of the concurrent budget resolution on March 25, and agreed to a conference report on May 12. Moreover, those concurrent budget resolutions contained politically tough deficit reduction provisions, and were submitted, debated, and passed at a time when a new administration was taking office--the first Presidential party change in 12 years. Mr. President, many of us on this side of the aisle are ready to help craft a budget that will eliminate the Federal deficit. We have demonstrated that we are willing to vote for politically unpopular proposals to lower the deficit. In 1993, when we were the majority party, we developed and passed a $500 billion deficit reduction package. We are still very sorry that no member of what was then the minority party decided to support that package, though it was certainly the right of each Senator to vote as they saw fit. Beyond the individual right of minority members, though, during the 103d Congress it was our responsibility as the majority party to advance a budget, not the responsibility of those on the other side of the aisle who were in the minority at the time. Mr. President, it is the responsibility of the majority party to propose, refine, and pass a budget, with or without the help of members of the minority. We want to be a part of that process and to cooperate. But it is first the responsibility of the majority. It is the privilege of the minority party to respond, offer alternatives, and, when conscience requires, to dissent from the budget proposal. Such is the political dynamic of our legislative process. And our colleagues on the other side of the aisle exercised their privilege as the minority party in 1993, and refused to join us in making that tough deficit reduction vote. Mr. President, the two parties have exchanges roles in the 104th Congress, but the duty of the majority party remains unchanged. It is the majority party that sets the agenda, proposes a budget, and finds a way to pass that budget. By contrast to the last Congress, however, I know a number of us in the minority are willing to support a budget resolution that reduces the deficit. We will help shoulder the burden of passing a budget that reduces the deficit. But, Mr. President, before we can provide that cooperation, we must have a budget to work with. The choices that face us are already extremely difficult. Each day we delay they become even harder. We are all very much aware of how our budget problems are accelerating, and what delay means in lost fiscal opportunities. But delay also risks the political consensus that must be achieved if we are to make significant progress on the deficit. Mr. President, without public support, we cannot hope to find the votes for a balanced budget. I don't mean to suggest that we can only pass a budget if the American people are enthusiastically behind every provision. That is not going to happen when doing spending cuts. If we could find such a proposal, we would have balanced the budget a long time ago. Nor do the American people expect or even want such a budget. They rightly are skeptical of those who promise easy solutions. Mr. President, what the American people do want is to feel that their elected Representatives are being straightforward and open with them about what they propose. They will not support a budget that is the product of closed-door meetings, held in the dead of night. But they will support a budget that is openly debated. They are willing to sacrifice if they feel that the process has been open and fair. Mr. President, this budget delay really amounts to a budget blackout. The longer the delay, the longer the blackout, and the less likely that we will be able to build the political consensus with the American public that we will need to balance the budget.

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, I ask unanimous consent to speak as in morning business for 4 minutes.

Mr. FEINGOLD

Mr. FEINGOLD. I advise the majority leader, about 15 minutes.

Mr. FEINGOLD. Mr. President, this legislation would not only curtail the power of juries to determine the amount of punitive damages to be awarded; it would also prevent certain evidence relating to damages from even being presented to the jury in the first place. That has something to do with the right to trial by jury. Section 107 provides that evidence relating to the punitive damages, for example, evidence of willful misconduct, would be inadmissible during the compensatory damages stage of the proceeding. That section 107 also provides that evidence relating to a defendant's wealth, which I think is clearly a relevant factor in assessing what level of punitive damages should be assessed, could not be presented to the jury, which, in my view, is another serious derogation from the right to trial by jury. Other proposals which may soon be added to this measure would do even more of the same. They would prevent juries from making punitive damages awards entirely, leaving those decisions not to the jury but to judges alone. All of these proposals, in my view, evidence a clear and very disturbing distrust of the jury system itself. And it looks to me like a presumption somehow that juries are incapable of reaching good decisions without these kinds of federally mandated restraints and constraints on the jury. That is what this is--a new Federal mandate that constrains and restrains juries. Mr. President, as we debate whether Congress should place these kinds of mandates or restrictions on the deliberation of juries, it may help actually to take just a few moments to reflect upon the historical importance placed upon the jury system in our Nation. The right to a trial by jury in civil as well as criminal cases was one of the most important rights that was sought by the framers of our Constitution. Indeed, one of the primary grievances of the American colonists against the British was the extensive effort by the British to shift the adjudication of civil and criminal disputes from the colonial courts, where the local juries traditionally sat, to the vice-admiralty courts and other nonjury tribunals administered by judges who were, of course, completely beholden to the British Crown. So this is not something that we just came up with recently. This goes back as far as our country's history to the colonial era. This anger over the fact that under the British rule juries were being deprived of their authority was actually expressed in the Declaration of Independence itself, which cites among the many grievances lodged at the British, ``For depriving us in many cases, of the benefits of Trial by Jury.'' Thomas Jefferson described the jury in his writings as ``the only anchor yet imagined by man, by which a government can be held to the principle of its Constitution.'' Mr. President, in the constitutional convention, the proposed Constitution included the right to trial by jury in criminal cases under article III, but the absence of an expressed guarantee of the right in civil actions was condemned by the antifederalists as sufficient cause to reject the entire Constitution. because of that omission. And, of course, it was those kinds of concerns of those who were not entirely happy with the Constitution itself that led to our Bill of Rights, specifically their demand for an explicit guarantee for the right of a trial by jury for civil cases, that led to its inclusion in the seventh amendment to the U.S. Constitution in our Bill of Rights. Mr. President, it was included from the first among Madison's proposals for the Bill of Rights, noting ``in suits at common law, the trial by jury, as one of the best securities to the right of the people, ought to remain inviolate.'' Juries were regarded by the Framers, according to one constitutional scholar, Morris Arnold, in a 1980 University of Pennsylvania Law Review article, ``A Historical Inquiry into the Right to Trial by Jury in Complex Civil Litigation,'' ``as more than a `mode of trial' they were instruments of local government as well.'' I find that very interesting. The 104th Congress, I think, should be given the most credit on any issue perhaps so far for having dealt with that whole overriding issue of unfunded mandates, of showing respect for the local levels of government. Mr. President, our Framers perceived the jury as one of those local levels of government, one of those institutions that was made up of the people back home not specifically beholden either to this Federal Government or, before the revolution, the British Crown. Indeed, this view of juries as a critical element of the American democracy prompted Alexis de Tocqueville to observe in ``Democracy in America,'' ``The jury is, above all, a political institution, and it must be regarded in that light in order to be duly appreciated.'' More recently in our modern history, Chief Justice Rehnquist recognized the historical role of the American jury in his dissenting opinion in Parklane Hosiery Co. versus Shore in 1979, in which our current Chief Justice stated, ``The founders of our nation considered the right of trial by jury in civil cases an important bulwark against tyranny and corruption, a safeguard too precious to be left to the whim of the sovereign.'' Mr. President, that is what this bill is all about today. This is the sovereign, the Federal Government, choosing to override the right of State and local juries to make the decisions about what a jury should be free to do. This is exactly what Chief Justice Rehnquist must have meant. The Supreme Court has repeatedly recognized the fundamental importance of trial by jury, stating in Dimmick versus Schiedt, that ``Maintenance of the jury as a fact-finding body is of such importance and occupies so firm a place in our history and jurisprudence that any seeming curtailment to the right to a jury trial should be scrutinized with the utmost care.'' Tort reform, particularly limits on the amount of damages that juries may award, clearly implicates this right to trial by jury, as a number of State court decisions have held with respect to State laws and constitutional guarantees to trial by jury. As the Washington Supreme Court found in the Sophie case, statutory damage limits interfere with the jury's traditional function to determine damages. That case also contains a very instructive discussion of the difference between a trial judge's power of remittitur to reduce a jury verdict and a statutory cap, an overall, across-the-board cap, on the amount of damages a jury can award. The court observed that the judicial finding that an award is too high in a particular case is fundamentally different from a legislatively imposed ``remittitur'' that operates automatically in all cases without regard to the facts and justice of the case. A judge implements remittitur only under well-developed constitutional guidelines that provide that a judge can only reduce a jury's damages determination when that determination was wholly unsupported by the evidence, obviously motivated by passion or prejudice, or when in certain cases it actually shocks the conscience just for a jury to have given such an excessive award. Mr. President, absent such factors, there is a strong presumption in favor of the jury's determination. And that comes to us all the way back from the Framers and the seventh amendment. Finally, the opposing party in cases of remittitur has the choice generally of accepting the reduction or seeking a new trial. It is not necessarily completely the end of the line. None of these safeguards, as was observed by the court in the Sophie case, is present in one of these across-the-board statutory damage limits that is contemplated by the legislation before us. The system of remittitur thus operates in a fashion very different from the kind of statutory caps that are being advocated by the people who are presenting the so-called tort reform. Mr. President, I do not intend to get into an extensive debate about whether or not the pending legislation violates the seventh amendment in practical terms, since the seventh amendment has not, to this date, actually been applied to the States through the 14th amendment, although it is certainly applicable, of course, to proceedings in Federal court. It certainly, however, Mr. President, violates the spirit of the seventh amendment, which was intended to assure that local juries, local folks on local juries comprised of one's peers, not just governmental officials in Washington, would be the ones to makes these decisions. I am advised that this measure, should it be enacted, Mr. President, will be challenged in court before the ink is dry, both on the basis of the seventh amendment and on the basis of last week's decision in United States versus Lopez, which restricts the right of Congress to intrude upon areas which have been traditionally regulated by the States under their own powers. The decision in Lopez states that the scope of constitutional authority under the interstate commerce power ``must be considered in light of our dual system of government and not be extended so as to embrace effects upon interstate commerce so indirect and remote that to embrace them, in view of our complex society, would effectually obliterate the distinction between what is national and what is local and create a completely centralized government.'' Now that sounds like language, Mr. President, of the so-called Contract With America--let us not take away the power of the States and the local governments. But, in a very real sense, that is the best description of this bill I have heard. Mr. President, I am one of the few Members of Congress who voted against the 1994 crime bill; in fact, one of only two Democrats to vote against the crime bill. I did it, in part, because I believe it represented an inappropriate incursion of the Federal Government into areas of law enforcement which had throughout our history been within the province of State and local law enforcement agencies. My reasons at the time were based upon policy concerns that the Federal Government ought to do a better job with the responsibilities that clearly rested at the Federal level than seeking to usurp State and local law enforcement responsibilities. Last week's decision, of course, by the U.S. Supreme Court adds an even more compelling argument to the debate. Congress does need to learn to restrain itself from trying to take on every problem that gets a headline in the newspaper. We need to learn to say that some problems are better addressed at the State and local level. That is why I voted for the unfunded mandates bill, and I believe, Mr. President, if especially the new Senators take a look at this bill, tort reform is clearly one of those areas that belongs with the States. I do not think the Federal Government knows better than the 50 States of this country as to what should be a law in this area. There is often a great deal of rhetoric about what the Founding Fathers might think about various contemporary problems and how our Government deals with those problems. All we can do is speculate. It was 200 years ago. But every argument makes us want to know, even though we cannot know for sure, what the Framers would have said. argued last week that if we asked the Framers, they would not have wanted juries to consider medical malpractice or product liability cases. I do not agree with that at all. I think that would have made a lot of sense to them. I, for one, believe that the Framers would be horrified--horrified-- at the idea of the Federal Government passing legislation like this to preempt the powers of State governments, to require State courts to follow Federal law in an area which has been the domain of the States and local governments and local juries for 200 years. They would have been horrified to hear the arguments that somehow the common citizens, the average folk of this country who comprise American juries, are somehow out of control and that they need the Federal Government in Washington to check their powers. That is about as direct an offense to the folks back home as I can think of, saying they cannot handle it on these juries, that they are out of control. I think the American patriots who fought against the British attempts to take power away from colonial courts, to prevent local juries from rendering decisions would turn over in their graves to hear such arguments advanced in their name and in defense of this legislation. Mr. President, this legislation is nothing more or less than an assault on the American jury system. It is predicated on a belief that local juries are not capable of rendering fair decisions. It is an attempt--a serious attempt--to diminish the role of juries, a role which our Framers regarded as vital to our democracy and system of government, and I think it should be soundly rejected. I just want to raise one last point that actually came out during the Commerce Committee hearing, and I think it is worth repeating. Testifying on behalf of the Conference of Chief Justices and in opposition to this bill was the Honorable Stanley Feldman, the chief justice of the Arizona State supreme court. The chief justice pointed out that in many States, we have entrusted juries with virtually all major decisions, including the decision of whether or not to sentence a criminal defendant to death. In criminal courts, we say to the juries, here are the facts of the case, here is what the prosecution claims the defendant did, here is the defendant's alibi or confession and here is the doctor's psychiatric evaluation. We give the juries all of this information, and then we ask them to make a final judgment about whether a person should live or die. As Chief Justice Feldman illustrated, it is almost bizarre that those who believe we should entrust with juries the power to put people to death also maintain that juries are unable to objectively calculate what a reasonable punitive damage award should be. I find it unfathomable that we can say that juries are qualified to impose the death penalty on criminal defendants but underqualified and incapable to assess monetary penalties against civil defendants. I am afraid that says something about what our society has come to value in this day and age. Mr. President, to conclude, this may not literally be an issue of whether the seventh amendment literally applies in this situation. It may, as constitutional interpretation has done with respect to Federal aspects of this bill. But, obviously, the right to trial by jury has to have some core meaning and, at some point, if you limit what a jury can do to make a person whole or you restrict the evidence a jury can hear to make its decision, it has to have an impact on the right to trial by jury. Maybe we have not reached that point yet in our legislation in this country, but I believe this bill takes us quite far over the line and does seriously diminish what I think most Americans would agree is properly the role of the jury, not the role of the U.S. Congress. I thank the Chair, and I yield the floor. Exhibit 1 Dear Colleague: As the debate continues around the product liability bill, I wanted to address one of the many myths circulating about the need for this legislation: that juries are out of control and they are subject to no restraints under current law. Quite simply, I believe this attack upon the jury system is unwarranted. For over two hundred years Americans have valued the jury box as much as they have valued the ballot box. Perhaps there is nothing more symbolic of or distinguishing about the American judicial system--the greatest judicial system in the world--than the principal of trial by jury. The one distinguishing characteristic about American jurors is that they have no distinguishing characteristics. A juror could be the waitress that served you breakfast this morning. It could be the person who delivers your mail. It could be your doctor, a family member or even your favorite celebrity. And we must remember that jurors today are just as capable of administering fair and equal justice as were jurors in 1791, the year the Seventh Amendment and the Bill of Rights were ratified. Unfortunately, the powerful supporters of S. 565 have run an effective campaign of misinformation about jury verdicts in recent months. They have tried to convince this country that jurors are determined to drive American manufacturers and corporations into bankruptcy. Of course, nothing could be further from the truth. A well-known study by Professors Michael Rustad and Thomas Koening--referred to by the Supreme Court as the ``the most exhaustive study'' ever on punitive damages--found only 355 punitive damages awards in federal and state courts for product liability cases between the years 1965-1990. Not counting the cases that related to asbestos, that is an average of about 10 punitive damage awards a year--hardly a situation of vindictive juries running amok in America. Does this mean that juries are inhuman and incapable of mistakes? Does it mean that jury decisions should be absolute with no checks or limits? Of course not. In fact, just last year the Supreme Court affirmed in Honda Motor Company v. Oberg that judges have a clear authority and obligation to limit punitive damages awarded by juries. As Justice Stevens wrote in his majority opinion, ``. . . judicial review of the size of punitive damage awards has been a safeguard against excessive verdicts for as long as punitive damages have been awarded.'' In their study, Professors Rustad and Koening found that of the 355 punitive damage awards in the past 25 years, 90 of these awards--about 25 percent--were either reversed or remitted by the presiding judge. Take the infamous McDonald's coffee case. The jury awarded $2.7 million in that case--the equivalent of two days' worth of McDonald's coffee sales. The judge reduced this to $480,000 or three times the plaintiff's economic damages. Judges can and do reduce these awards. In short, this is reflective of a system of justice in which juries prescribe appropriate sanctions against parties that have been found guilty in a product liability action and at the same time bestows upon judges a necessary oversight role that is exercised with frequency and prudence. The fundamental issue here is this: If an injured consumer sues a manufacturer in a state court, who do you trust to administer justice in that case--the judge and the jury, or Congress? Best regards, Russell D. Feingold. Mrs. HUTCHISON addressed the Chair.

Mr. FEINGOLD. I thank the Chair, and I thank the majority leader. Mr. President, I believe my remarks at this point are not only relevant to the whole bill but in particular to the contents of the Dole amendment and some of the contents of the further amendments of the Senator from North Dakota. I would like to take this opportunity to respond to statements made during the debate last week by the senior Senator from Washington that suggests has seventh amendment implications is somehow a bizarre argument. In effect, that statement was made by the distinguished Senator from Washington on the opening day of this debate, on April 24, following the opening remarks by the Senator from South Carolina. On April 26, after my own remarks referencing the seventh amendment to the U.S. Constitution, the Senator from Washington described references to the seventh amendment in this context as both curious and bizarre. I note that the Senator from Washington was very careful not to assert that either the Senator from South Carolina or the Senator from Wisconsin were making the argument that the pending legislation literally violated the seventh amendment, but rather he stated that we were ``somehow or another implicating the seventh amendment right of trial by jury into this debate and thereby implied at least that the bill before us somehow or another restricts that constitutional right to trial by jury.'' That is the end of his statement. Mr. President, I find the statements made by the Senator from Washington to be somewhat curious for two reasons: First, a number of State courts have already struck down State statutes imposing limitations on amount of damages that juries can award as violating State constitutional guarantees of a right to trial by jury. There is nothing strange or bizarre about suggesting that such limitations on the ability to recover may violate fundamental right to trial by jury since a number of State courts have already made precisely that determination with respect to similar State laws, and similar State constitutional provision. For example, in Smith v. Department of Insurance, 507 So. 2d 1080 (Fla 1987) a $450,000 cap on noneconomic damager in tort actions was found to violate a right of access to the courts and the right to a trial by jury. In Kansas Malpractice Victims Coalition v. Bell, 757 P 2d 251 (Kan 1988), a limit on noneconomic damages and on total damages was held to violate the state guarantee of right to remedy and jury trial. In Sophie v. Fibreboard Corporation, 771 P. 2d 711 (Wash, 1989) a cap on noneconomic damages in tort actions was found to violate the State constitutional right to a jury trial. The Court said in the Sophie case that ``[the state of Washington] has consistently looked to the jury to determine damages as a factual issue, especially in the area of noneconomic damages. The jury function receives constitutional protection [under the State constitution] which commands that the right of trial by jury shall remain inviolate''. There has thus been a series of State cases holding that statutory limitations quite similar to those proposed in the pending legislation violate State constitutional provisions guaranteeing a right to a trial by jury. As the Senator from Washington well knows, the seventh amendment has not been held to apply to State court proceedings. Indeed, both the Senator from South Carolina and I have been careful not to argue that the legislation violates the seventh amendment as applied to State court proceedings. However, many State constitutions provide for constitutional guarantees for trial by jury in State court proceedings that parallel the seventh amendment, and, as I have cited, a number of courts have held that limitations in State laws similar to those proposed in this legislation which limit the ability of a jury to award damages violate the right to a trial by jury under those State constitutional provisions. So, Mr. President, that is the first reason it is neither bizarre nor inappropriate to argue about the right to trial by jury and the impact this legislation may have on it. But there is a second reason, Mr. President. Second, it is clear that this legislation is an assault upon the American jury system and that is precisely what the proponents intend-- an assault upon the American jury system. Repeatedly, supporters of this legislation have asserted that it is needed because of excessive jury awards in product liability and other tort litigation. They have repeatedly argued that the legislation is necessary to curb American juries from making these excessive awards. This debate has been full of so-called examples of excessive jury awards, starting with the infamous McDonald coffee case. In fact, this is a specious argument. To the extent that jury verdicts have been excessive, courts have routinely stepped in and reduced the awards, using their long- established powers of remittitur. The infamous McDonald coffee case is an excellent example. The court there reduced the jury award from $2.7 million to $480,000. I ask unanimous consent that a ``Dear Colleague'' I recently circulated dealing with the myth of excessive jury awards be printed in the Record at the conclusion of my remarks.

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, true pioneers are rare and special individuals. They inspire us with their vision, their energy, their skill and their ability to lead. Today I am sad to report the passing of one such pioneer, the legendary aviator Sylvester Joseph Wittman. Mr. Wittman and his wife, Paula, died in an airplane crash on Sand Mountain, in northeastern Alabama last Thursday night. They were flying in an airplane that Mr. Wittman had designed and built from their winter home in Ocala, Florida to their home in Oshkosh, Wisconsin when the accident occurred. Wittman, as he preferred to be called, helped write the book. His life practically traced the history of aviation. He took wing in the spit- and-bailing-wire era and never stopped contributing to his beloved calling even as we began flying farther, higher, and faster in more complex machines. He was born in the year after the first powered flight at Kitty Hawk. His flying career began in 1924, when he and a partner bought an airplane, and he taught himself to fly. His first pilot's license was signed by Orville Wright. For 70 years, he designed, built and flew airplanes as a barnstormer, a test pilot and a racer, and he was one of the founders of the Experimental Aircraft Association, the Oshkosh-based organization that does so much to promote the love and the joy of flying. The Winnebago County airport in Oshkosh, which Mr. Wittman managed from 1931 until 1969, is named Wittman Field in his honor. Buster, a red single-engined midget racer Mr. Wittman built and flew is currently on display in the Golden Age of Flight Gallery in the West Wing of the National Air and Space Museum. Buster, originally named Chief Oshkosh, raced successfully for 23 years, beginning in 1931. He was a superb pilot, and stories about his skill are legion, even though he was reluctant to tell them himself. One of the more famous incidents occurred as he and a friend were flying over Tennessee. A trigger-happy rifleman had put a .22 calibre slug into Mr. Wittman's gas tank, and the fumes almost asphyxiated him. He managed to get his ship down safely, a bit of flying his partner barely completed though fully conscious. He kept the slug as a souvenir. Mr. Wittman set several speed records, and it would be hard to find a significant air racing event he had not entered. It wasn't unusual for him to fly home with the winner's trophy. He entered his last closed- course pylon race in 1989. At the age of 85, he won one heat, finished second in another and then came in third in the final race. By the way, he did all this with vision in only one eye. He had lost the other in an accident when he was young. In addition to his brilliant and storied racing career, he also contributed greatly to the common body of knowledge of the aviation community. Although he had no formal engineering training, he was often ahead of the curve in aviation design, and he never stopped looking for clues to better performance. He designed a landing gear that has been installed on over 100,000 airplanes. One of his airplanes, the Wittman Tailwind, is a design that is still being flown by private pilots all over the world. His self-developed talents were so impressive, he was made an honorary member of the elite Society of Experimental Test Pilots, a rare achievement. He had his share of bumps and bruises in crashes along the way, but at 91, he was still flying. He did all this with modesty and gentlemanly character, and he was a man who enjoyed life at a level most of us never approach. As Tom Crouch, chairman of the Aviation Department at the Air and Space Museum put it, ``If anybody in the history of aviation could be called a legend, it would sure be him.'' Our condolences go out to Mr. Wittman's relatives, friends, fellow aviators and to all those who were inspired by this true pioneer.

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, first of all, I note with interest the Senator from Minnesota's liberal interpretation of 2 minutes, as well. But it was well worth it when you listen to him, because I not only agree with his approach in this amendment, but his eloquence on the floor today and throughout this piece of legislation is a very important part of dealing with the amendment and dealing with what this bill is all about. So I appreciate his courtesy. Amendment No. 603

Mr. FEINGOLD. I thank the Chair and I yield the floor.

Mr. FEINGOLD. Mr. President, I rise today to oppose the underlying amendment offered by the junior Senator from Kentucky. I do so on the same grounds that I oppose the underlying legislation. This sort of liability reform is not needed, it is not justified, and it is certainly not fair to injured consumers and patients. I am very glad I was on the floor a few moments ago to hear the junior Senator from West Virginia indicate his intention to move to table this underlying amendment. Even though we may disagree on the underlying legislation as a whole, I am pleased to see his consistent effort to make sure that this bill does not get completely out of control and try to revamp our entire civil legal system when we are supposedly debating one particular aspect of it. Mr. President, I know that others have already spoken out against the underlying amendment and spoken directly to the question of how justified and how needed it is. I would like to add my voice to this particular chorus and make two points about this amendment and the direction it is taking us. First, I have to note with a lot of regret that the first issue raised in the new Republican Congress dealing with the tremendous health care dilemma this Nation is facing has to do with malpractice and health care liability reform. We are not talking about providing universal health care coverage to all Americans. We are not talking about legislation that says if you get sick, you have a right to see a doctor. We are not you talking about providing community-based, long-term care for the elderly and people with disabilities. We are not talking about addressing the skyrocketing costs of prescription medicines so the elderly will no longer have to choose between their prescription drugs and their food and heating bills. No, Mr. President, we are not talking about any of these issues that were so frequently debated by both parties last year. Everybody said they were important issues that merited our attention, but none of those have come forward in these months that we have been in the 104th Congress. We are not talking about these issues because it is the belief of some on the other side that most of our health care problems are based on the so-called liability crisis faced by doctors and hospitals. Mr. President, that is not to say it is not an important issue. That is not to say it does not deserve our attention in the broader context of health care reform. But I think that right now the 38 million Americans who do not have health insurance, if they hear this, must be saying, ``Are you kidding me?'' Because there are people who are walking around right now without health insurance at all. It might be the factory worker who has lost his job and his health insurance along with it. It might be the young mother who has a preexisting condition and is unable to find an insurer. It might be the young child who was paralyzed in an automobile accident and whose health benefits have run out because of an arbitrary cap. Instead of addressing true reforms that would actually improve some of these situations, we are instead debating an amendment that would limit the judicial remedies of those who have been the victims of malpractice and negligence by a few bad actors in the health care profession. Proponents have compared it to the malpractice reforms passed by the State of California several years ago, and there seems to be some disagreement about the actual success of those reforms in terms of their effect on liability insurance premiums and also about the overall costs to the California health care system. But there is one fact that cannot be disputed: Despite the so-called liability reforms in California, there are millions and millions of Californians In fact, a recent study by the UCLA Center for Health Policy Research shows that there are 6.5 million Californians without health insurance; 6.5 million people in one State. There are more uninsured children, workers, and families in California than there are residents of my State, and my State is one of the top 20 States in population. Almost 23 percent of the State of California is currently uninsured, well above the national average of over 18 percent. What does this tell us? It tells us that these kinds of liability reforms are not that much help to those who are most at risk in our health care system. And it tells us that suggesting liability reform is beneficial or central to health care consumers is a little bit farfetched. But there is another point I want to make about this amendment. The supporters of this amendment have tried to make the argument that such reforms will save many health care dollars and, in the end, will be beneficial to all involved--health care consumers as well as doctors and administrators. This is analogous to the arguments put forth by supporters of the underlying legislation, that in the end, the reform on product liability laws will be of benefit to consumers as well as the manufacturers, who are principally to benefit. But they certainly are not beneficial or fair to the victims of negligence in the health care system. It seems that just about every day you pick up a newspaper and there is a story of some horrible tragedy that was needlessly caused by negligence, error or even worse. One recent headline in the Washington Post reads: ``Hospital Gave Two Men Fatal Overdoses.'' This Associated Press story describes how a Boston hospital just recently disclosed an incident in 1991 where two skin cancer patients were mistakenly given overdoses of a treatment drug. They were, in fact, given three times the recommended dosages. Both men first lost their hearing, then their livers and kidneys failed. Within weeks, both men were dead. According to this news account, there have been at least 10 chemotherapy dosage errors since 1990 in hospitals located in eastern Massachusetts. Six of those patients have died. Mr. President, for me, it is the case of Karin Smith that most reminds me of the tragedies that often take place in the health care system and often needlessly. Karin Smith was just 22 years old and an ambitious certified public accountant living in my State in Nashotah, WI, when she first went to her HMO concerned about some vaginal bleeding she had experienced of late. For 3 years, Karin tried to convince her doctors at her HMO that she was sick. She made 15 office visits and 10 phone calls. At one point, she had bled for 35 straight days before passing out. During this time, the HMO took three Pap smears and sent them out to a clinical laboratory to be analyzed. Unfortunately, the results were misread. How were they misread? It turns out that the director of the laboratory had paid the lab's technician on a piecework basis for reading Pap smears. In 1989, the technician had read 31,000 slides for the laboratory in question and another 16,000 slides for a different laboratory. That is a total of 47,000 slides just in 1989. The American Society of Cytology recommends a maximum of 12,000 slides a year for the sake of quality control. So this person had overdone this practice to the detriment, potentially, of his or her ability to do the job right four times more than the recommended amount of slides. In 1991, Karin left her HMO and saw a gynecologist outside of that plan. Within 2 weeks, her doctor correctly diagnosed Karin as having advanced cervical cancer. Last summer, Karin testified before a Senate subcommittee looking into the health care problems facing our country. I would like to read very briefly from the statement Karin gave that day, Mr. President. Karin said: Although the doctors at my HMO kept telling me I was basically OK, I knew better. My only alternative was to see a gynecologist outside of the plan, who immediately suspected I had cervical cancer. His suspicions were confirmed by a surgeon shortly after our initial visit. Had my cancer been diagnosed at the time the first Pap smear was misread by my HMO, I would have had a 95 percent chance of survival. However, due to their gross incompetence and shameful errors, I am now dying. I am only 28 years old and am told by my doctors that I will probably not live to see my 30th birthday. My cancer has spread through my lymphatic system, from my pelvis to my abdomen, and as of 2 weeks ago to my neck. The fifth vertebrae of my upper spine is so completely infiltrated with cancer that at any moment I may become paralyzed. Since my diagnosis 2\1/2\ years ago, my life has been consumed by one horrifying medical procedure after another. I have endured three separate courses of radiation, 6 months of inpatient chemotherapy and seven surgeries. At times, I have laid in a hospital bed, isolated from my family, friends, even my husband, because my immune system was so suppressed that a minor cold could destroy me, or my frail body was riddled with infection, or radioactive materials were implanted into my internal organs and I writhed in pain. . . Although the physical treatment has left me with disfiguring scars from my pelvis to my neck, the emotional scars cut much deeper. I'm so young, yet my career as a CPA is over. . . I'm married to a wonderful man, but I'll never bear his children. . . Our lives have been forever changed by this unnecessary and senseless tragedy. In addition to myself, several other women in the Milwaukee area have been forced to suffer this plight because of the HMO's gross failure to provide safe and competent medical care. One woman died last year, she was only 40. . . Her Pap smear was misread just like mine. Another woman, whose tests were also misread is just waiting to die. Those are Karin's remarks. In September 1993, Karin Smith wrote an op-ed piece in the Milwaukee Journal on the very issue we are debating today, tort reform. Karin did some extensive research for this article and found that in Wisconsin, between the years 1976 and 1988, just four physicians accounted for nearly 18 percent of losses paid in claims. In short, Karin discovered a trend in Wisconsin that reflected a national pattern, and that pattern is that a few bad actors in the health care field were causing a plurality of the problems. And instead of focusing on appropriate sanctions for these few individuals, we are instead considering limitations on the ability of injured consumers, such as Karin, to recover damages that will make them whole once again. Mr. President, last year I met Karin Smith in the reception room a few feet from where I am right now. Today, Karin Smith is dead. Unfortunately, Karin's fight against her cancer has come to an end. Karin Smith passed away in March of this year. She was 29 years old. On April 12, just weeks ago, the district attorney of Milwaukee County announced that he was filing criminal charges against the laboratory for the deaths of Karin Smith, as well as Dolores Geary, a 40-year-old mother of three who also was a victim of the laboratory's errors. This is believed to be the first time that a medical laboratory as opposed to a doctor has been charged with a crime. In this case the crime is reckless homicide. Mr. President, I have spoken out today because Karin did everything in her power while she was alive to make her story known. She wrote letters to the newspaper; she testified before Congress, and she never stopped fighting for the rights of victims like herself. Karin Smith was the victim of not mere negligence or error but of reckless behavior by a few bad actors in what is otherwise an honorable and very dedicated profession. In the Milwaukee Journal Karin wrote: It is a common perception that tort reform is strictly a battle between doctors and attorneys. What is painfully ignored is that victims are in the middle of this war. This is ironic, because these are the very people whom the tort system was designed to protect. Mr. President, I could not have said it any better. It was designed to protect innocent consumers like Karin, the victims of that negligent behavior. Remedies should be available to make injured individuals whole again. It was not designed in order to protect the economic interests of those who are the cause of the injuries. Mr. President, I think it is relevant to briefly comment on how the underlying McConnell amendment would have affected the case of Karin Smith. For starters, the McConnell amendment would extend the cap on punitive product liability cases to cases of medical malpractice. That means that had she not reached a settlement, a Wisconsin State jury would have been prohibited by Federal law from awarding more than $250,000 or three times the economic harm in punitive damages. Mr. President, what are Karin Smith's economic injuries? I am not sure, honestly. I do not know what the earnings of a CPA in her early twenties are. I know the parties involved should be punished for their actions, and, hopefully, with a strong enough sanction that will send a message to others in the health care system that such conduct will not be tolerated. In the end, this decision should be made by a jury in Wisconsin, comprised of everyday Americans, who for over 200 years have been capable of administering justice in a fair and equitable manner. Most importantly, how dare any Member of the U.S. Congress tell a Wisconsin jury that the appropriate punishment for the taking of Karin Smith's life must be no more than $250,000? Where does this Congress get the right to make that decision? That is not all this amendment would do. The extension of the elimination of joint liability for noneconomic damages to medical malpractice cases is equally mortifying for individuals who find themselves in the same predicament Karin Smith found herself in. I cannot even begin to imagine, Mr. President, what Karin's noneconomic damages were--her pain, her suffering. How do you put a price tag or a cap, for that matter, on Karin's inability to bear children and raise a family? How do you quantify the pain and suffering associated with a cancerous growth that spreads from your pelvis to your neck? I am not sure I could. I do not envy any judge or jury that would be charged with the responsibility of calculating that. But imagine if Karin's case had gone to trial, suppose the lab had misread Karin's test results and the HMO that sent the results to the lab were found to be liable in this case; suppose the lab became insolvent and was unable to pay the percentage of noneconomic damages that it was found to be responsible for? What would happen in that case under the underlying amendment? Should we watch out for the best interest of the HMO here and deny Karin her due compensation for the incredible degree of pain and suffering she went through? Should we say that the HMO is partly, if not largely, responsible for Karin's injury, and they must shoulder the responsibility for making sure that Karin and her family are adequately compensated? I think when you ask these questions in terms of the real people involved, the right answers become quite clear. Karin Smith was right, Mr. President. This is not really a battle between lawyers and doctors. The medical profession in this country is outstanding and should not be maligned because of the foolish actions of a few in the health care system. We clearly have a health care crisis in this country. Millions and millions are uninsured, costs are skyrocketing, and the health of our Nation is being compromised. I strongly urge the supporters of this amendment to join with those of us who believe that we need comprehensive health care reform, and we need it now. Only that kind of real reform will solve the problems that this amendment claims to address. Mr. President, I ask unanimous consent that two items be printed in the Record. The first is a statement that Karin Smith delivered at a Senate hearing last year, and the second item is the op-ed piece from the Milwaukee Journal in 1993.

Mr. FEINGOLD

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

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, I rise today to express my strong opposition to S. 565, the Product Liability Fairness Act of 1995. It is because I really see it as the worst of both worlds. First, I think it is a bill that has been shown to have little, if any, demonstrated need; second, I think it will have drastic and undue effects on some of our most vulnerable citizens in this country. Those who support this legislation have stated over and over that the bill is to everyone's benefit. It supposedly will benefit manufacturers, investors, business owners, workers, and consumers, they say. Yet, I have still not heard of a single major U.S. consumer organization that has endorsed this legislation. The legislation is, in fact, opposed by virtually every group in the country representing working people, consumers, children, and the elderly. The Product Liability Fairness Act says that it seeks to set uniform Federal standards for product liability legislation that would override certain existing State laws. It is not really a bill that provides uniformity at all. Those State laws that are more protective of injured consumers are preempted under this bill while those State laws that go beyond what this bill would do in terms of shielding negligent manufacturers are left intact. They are left the same. It is not a bill that has anything to do, really, with uniformity. In addition, Mr. President, it establishes a heightened--that is, more difficult--conscious and flagrant standard for the rewarding of punitive damages in product liability cases, and it would arbitrarily cap damage awards for punitive damages at $250,000, or three times economic damage. Again, those State laws with higher caps or no caps are preempted. Those States with lower caps or no punitive damages awards are left completely untouched. The bill would also set a 20-year statute of repose, unless, of course, a State law has a lower statute and is, therefore, left alone and also a 2-year statute of limitation. Finally, Mr. President, this legislation would eliminate joint liability for noneconomic damages and create new standards for seller liability. There are several reasons why I oppose this bill. Before I talk about the specific flaws of this legislation, I think it is important to note the larger context that the issue of product liability reform fits into. That is why, as I look at this whole bill, I oppose the whole approach. It is not a question of fixing this and fixing that. I think the whole concept driving this bill is an error and should be defeated. For the past several months, all of us, Republicans and Democrats, have, of course, been trying to interpret the meaning of the November election. Many of our Republican colleagues have interpreted those elections as being a statement against big, inefficient and bureaucratic government. I disagree with a lot of the statements that have been made about what the November elections have been about. But I think that maybe is one legitimate interpretation of the elections, to say that people have had it with big government. And I think in many cases that is a legitimate complaint that our constituents have, and that they did express on November 8. It would make no sense to argue that all Government programs should be run by Washington, DC, or that all Government programs should be run by the States. Some programs do address underlying problems that are national in scope, across State borders. But others are more local in nature and are best left to the local and State governments to determine how they can best address problems that they are more familiar with than are the folks that work in Washington, DC. With regard to this matter I, for one, strongly believe that there are many issues that should clearly be left to the State and local governments to address. One of the reasons I opposed last year's crime bill was precisely because it shifted power away from our State and local courts and the law enforcement officials there, who have been dealing with crime problems in their own regions and are best equipped with the knowledge and creativity to solve those problems. So that is one reason why I opposed the crime bill, because I did not think we should have an overarching Federal Government controlling all aspects of that issue. Many on the other side of the aisle have been among the strongest proponents for the so-called States' rights issue. Indeed, our distinguished majority leader has stated repeatedly this year his intention to dust off the 10th amendment and give greater control over local problems to the State governments. It was the Speaker of the other body who stated the following in his address to the Nation on April 7, about the intent of the congressional Republicans in the 104th Congress. He said: We must restore freedom by ending bureaucratic micromanagement here in Washington. This country is too big and too diverse for Washington to have the knowledge to make the right decision on local matters. We've got to return power back to you, to your families, your neighbors, your local and State governments. Given those statements, how does this square with the legislation we are considering today? What happened to the need to address local problems on the local level? All this talk about States' rights is about to go right out the window, as we usurp over 200 years of State control over their tort systems. It seems a very odd trend indeed. It should come as no surprise that this legislation is vehemently opposed by the American Bar Association, the National Conference of State Legislators, and the Conference of State Chief Justices. But those who support this legislation do not want to listen to State legislators or State judges or consumer organizations. They do not even want to listen to those individuals who have been tragically maimed or injured by the negligence of a small but powerful group of manufacturers. Of course, those who support this legislation justify the bill by saying that such drastic action is needed to curb the so-called litigation explosion that has supposedly resulted in a court system totally bogged down in product liability litigation. Let us take a quick look at just how bogged down are our courts with product liability claims. The Department of Justice, using data compiled by the National Center for State Courts, recently released a study of 378,000 State tort cases which apparently represents about half of all tort suits completed between July 1991 and June 1992. According to the study, only 3 percent of all tort claims involve product liability, just 3 percent of all tort claims. The bulk of the tort claims liability. This study also found that in 1993 tort claims comprised only about 10 percent of all civil case filings. That means that the so-called massive usurping of State sovereignty because of a so-called explosion is occurring to address an area that represents less than 1 percent, actually less than a half a percent of all civil case filings. So, this is no panacea for our civil justice system. Despite these statistics supporters continue to claim that our small business and manufacturing communities are suffocating under the burden of liability insurance and the constant threat of litigation. Yet just 2 years ago the National Association of Manufacturers--clearly one of the biggest backers of this legislation--announced their own results of a survey they had conducted of their own members in which they asked their members what specific issues were of concern to them and what problems in their minds pose the largest impediments to growth in the manufacturing industry. The results are very interesting and I think somewhat at variance with the claims of those who are so strongly supportive of this bill. Somewhat incredibly, given the rhetoric, just 8 percent of the respondents listed product liability as a major problem in the manufacturing industry, only 8 percent. This is not a survey of the whole public. This is a survey of manufacturers. In fact, almost three times as many of the respondent manufacturers listed the Federal budget deficit as undermining the growth of the manufacturing sector. So who is on the side of the manufacturers here? Those who support reforming the legal system, which less than 1 in 10 manufacturers listed as a major impediment to growth in investment? Or those of us who have consistently been out here voting for legislation that slashes Government spending and reduces the deficit, such as the President's 1993 budget bill that has cut our annual projected deficits by almost $100 billion. I guess I am a little surprised at the eagerness of those on the other side to usurp the authority of the States to address a problem that has traditionally been a State issue. Unfortunately, though, I am no longer surprised at the continued pecking away at the provisions and principles contained in our Constitution. In this case I think this has something to do with some of the principles embodied in the Bill of Rights. I think it is astonishing the number of different efforts underway in this Congress that would dramatically alter the U.S. Constitution. Let us just start with the proposed constitutional amendments. We had the balanced budget amendment, which was thankfully defeated in this body. We had a constitutional amendment being proposed for line-item veto authority. Soon we will apparently be considering term limit constitutional amendments, which in my view represent a profoundly undemocratic viewpoint, that we need to limit people's voting rights by telling the voters back home for whom they can and cannot vote. There are other things this Congress apparently has in store for rewriting, redrafting, and in my view gutting the Bill of Rights. Constitutional amendments have been introduced on school prayer and flag desecration which, to my knowledge, would mark an unprecedented historical event by amending the first amendment. And in the Judiciary Committee recently, Mr. President--you sit on that committee as well-- the Republicans have all but stated their intention to toss out the exclusionary rule, a key legal principle derived from the fourth amendment, on unlawful search and seizures. Perhaps we will soon be holding hearings in the Judiciary Committee on the eighth amendment and what may be obsolete principles, according to some, of excessive bail and cruel and unusual punishment. In a sense I think this bill unfortunately turns us to another provision of the Bill of Rights, the seventh amendment. This product liability legislation in my view really, at least in principle, contradicts an important legal principle that has been the cornerstone of our judicial process for the last 200 years, and that is the right to trial by jury. True, there have been no proposals in the 104th Congress, at least not yet, to eliminate an individual's right to a jury trial. But I am concerned about it, especially after the senior Senator from West Virginia has described the efforts of some in this Congress to relegate the Constitution to the rare book room of the library. But I think it is clear what a tremendous emphasis our Founders placed on the notion of allowing a panel of your peers to determine your fate, and that it is the jury, representative of the American people as a whole, that is best equipped to hear the facts of a case, filter out the truth, determine who is at fault in a case, and then finally determine the appropriate degree of punishment. That is a jury function in our common law tradition, not a judge function, traditionally, and certainly not the function of the Federal Government as embodied in the U.S. Congress in Washington. I will speak in more detail about this at a later time but I view this measure as nothing more or less than an assault on the concept of trial by jury. Mr. President, in addition this legislation is riddled with complications and contradiction. Let me discuss this cap on punitive damages for a moment. Under this legislation, punitive damages are capped at $250,000, or three times a plaintiff's economic damages, whichever is greater. First, I find it interesting that those who support this legislation claim that it provides uniform Federal standards with respect to product liability. How can they even stand up with a straight face and say that? It is simply not true because, if this was truly a uniform standard, that would mean the punitive damages would be capped at $250,000, or three times economic damages in all of our 50 States. But that is not the case. Those States that currently prohibit punitive damages would be permitted to continue to completely prohibit punitive damages. They would not have to comply with this new Federal standard of allowing at least up to $250,000 or three times economic damages in punitive damage awards. So let us be clear about what this means. This is the opposite of uniformity. If two individuals living in States with different sets of product liability laws are injured by defective products produced in those respective States the two individuals have substantially different legal rights and remedies available to them. But that is not all. One of the foremost purposes of punitive damage awards is not only to punish those manufacturers who deliberately and willfully market a product they know to be effective and dangerous, it also is to deter other manufacturers from engaging in such practices. I would presume that the reason some punitive damage awards are permitted under this bill--at least I hope this is the view--is because the supporters of this bill presumably agree that punitive damages have at least some sort of role, some purpose to play in deterring such abuses and protecting consumers. Mr. President, this just does not add up. Under this bill, those States that currently prohibit punitive damages would be able to continue to completely prohibit punitive damages. That means consumers, children, and the elderly living in different States with different sets of laws will have substantially different protection from injuries and defective products. So much for this notion that this bill is all about uniform Federal standards, and so much for the idea that this bill is fair, equitable, and beneficial to consumers. But again, I assume that most of the supporters of this legislation do have a feeling of supporting some concept of punitive damages, recognizing that there are clearly a set of cases where punitive damage awards are appropriate and necessary to sanction a manufacturer who has been willfully negligent. Mr. President, I ask: Why do we not force those States that currently have this absolute rule prohibiting any punitive damage awards to change their laws and to meet this new Federal standard that is proposed in this bill? I guess I am going to have to take a crack at predicting the answer to that question. I presume that the answer would be that we here in Congress should defer to the State legislatures that have made the determination that there should be no punitive damage awards in their State's product liability cases. State laws, such as those in my home State of Wisconsin, that allow punitive damage awards where appropriate? Why do we not respect the State of Wisconsin enough to defer to the wisdom and judgment of its legislature and its Governor on this matter? It appears to me to be completely contradictory to say that you support uniform Federal standards for product liability laws, and also support the notion that States can have different standards for punitive damage awards. The bottom line for those on the other side of this aisle is clear: Giving more power to the State and local governments is a great idea, but only when you agree with the principles and policy that those entities are pursuing. Second, I assume that those who support limiting punitive damages do so because they believe that these awards are out of control and that limiting punitive damages will allow us to somehow simultaneously improve our productivity and innovation and somehow continue to constrain the abuses--sometimes very willful abuses--of manufacturers who market defective products. I would like to now examine those premises. First, with regard to the frequency and size of punitive damage awards, I think that the evidence that has been presented thus far has made it clear that punitive damage awards have been grossly mischaracterized. They are not out of control. They are not adversely affecting the competitiveness of American manufacturers. Recently, the Senate Judiciary Committee on which I serve held a hearing on punitive damage. At that hearing Dr. Stephen Daniels of the American Bar Foundation reported findings of a study that he completed of over 19,000 civil jury verdicts in 89 counties in 12 States plus the entire States of Alaska, Idaho, and Montana for the years 1988 through 1990. Not only did this study find that punitive damages are awarded in a small percentage of all civil cases--that figure was roughly 4.8 percent--the study also excluded that punitive damage awards were modest and more often awarded in financial property harm cases than in product liability cases. This study was consistent with an earlier study of Dr. Daniels of punitive damage awards in the early 1980's. That study at that time produced very similar results. The bottom line is that in recent years there has been virtually no proliferation in the size or frequency of punitive damage awards. As has been cited by others as well, another study by Professors Michael Rustad and Thomas Koening found that during the years 1965 through 1990, a 25-year period, there were a total of just 355 punitive damage awards in both State and Federal courts. Roughly a quarter of these awards were reversed or remanded upon appeal. Mr. President, 91 of these cases were related to the asbestos issue. That means excluding asbestos cases there has been an average of about 10 punitive damage awards a year in both Federal and State courts for the past 25 years. Clearly these studies and others demonstrate the inaccuracy of claims that punitive damages are increasing in size and frequency. Those who believe we need to cap punitive damage awards in product liability cases, as this bill prescribes, should understand that we are only talking apparently about roughly 10 cases per year. What will happen to the quality of American-made products under this legislation? How concerned will multimillion-dollar corporations be about the safety and quality of their products when they are most likely to face a punitive damage award that would only be equal to a fraction of their profits in one day--just a fraction of one day's corporate profits? It does not sound like much of a deterrent. Just last year, a California jury ordered Dow Corning Corp. to pay $6.5 million in punitive damages for knowingly manufacturing faulty silicone gel breast implants. This verdict was upheld by the ninth circuit court of appeals that found that Dow Corning knew that the product had possible defects and exposed thousands of women to a potentially painful and debilitating disease. Under this legislation, that punitive damage award would have been reduced to three times economic damages, or about $l.4 million. It would have been a 78-percent reduction in that judgment. Measured against Dow Corning's assets of $l.4 million, punitive damage award for these acts would have only represented about 0.04 percent of that corporation's assets; just four one-hundredths percent. What does this mean? It means that a corporation was able to knowingly market a product that they knew to be defective, and they knew it threatened the health of thousands of women. And yet under this bill they would only have had to pay a penalty of four one-hundredths of 1 percent of their assets of a huge corporation. That is what happens when you replace the jury's knowledge and familiarity with the particulars of a case and replace it with an arbitrary cap on certain damage awards. That clearly illustrates just who stands to benefit from this legislation and demonstrates the absurdity of the notion that anyone could say that this bill is fair to consumers. I also want to discuss the elimination of joint liability for noneconomic damages under this legislation. Opponents of the principle of joint liability make a pretty compelling case. I have to concede that on the surface it is one you really have to examine in order to counter it. It is hard to understand. Why should someone who is held to only 50 percent, or 25 percent, or even 10 percent liable for an individual's injury be forced to assume a much greater burden of compensatory damages if another liable party is financially unable to pay the damages? Certainly there is a force behind that when you just look at it on the surface. Why should a party that is held to be partially liable for an injury be forced to pay an entire damage award if the other party or parties are unable to pay? Some believe this is a good argument for supporters of this bill. It sounds good; it sounds fair, unless, of course, you are a 10-year-old child who has lost his vision for the rest of his life because of the negligence and irresponsibility of a manufacturer who is held not entirely but the manufacturer is held partially liable for the damages. The manufacturer is partly responsible for the horrible thing that has happened to this 10-year-old. Suppose in this case the manufacturer is held 60 percent liable while the large multi-million-dollar retail chain that sold the product is held 20 percent liable, and other parties involved make up the remaining 20 percent. Suppose the manufacturer then files for bankruptcy. What happens then? Sure, the child's family will be reimbursed for their hospital bills and maybe for the lost wages of the 10-year-old for the lawns he used to mow or the driveways he used to shovel. When we talk about noneconomic damages--noneconomic damages--the child under this law, under this bill before the Senate, will only get a fraction of that to which he is entitled. I notice that the interests that support this legislation have cleverly chosen to highlight kids in that age group, using the Little League of America as an example of the need for tort reform. But what about the baseball games that this 10-year-old boy could no longer participate in because of his loss of vision? What about the fact that this 10-year-old boy could no longer even watch a baseball game either at a stadium or on television? Baseball is finally back, as of yesterday and today. But this bill cuts out those considerations and caps them for a child such as this. Is it fair that supporters of this legislation are more concerned about the manufacturer who is 10 or 20 or even 30 percent liable for an accident, partially liable, more concerned about that manufacturer than the child who is zero percent responsible, zero percent responsible, and completely innocent of any wrongdoing? Is that the right balance? Of course, those corporate interests backing this legislation are not terribly concerned about those questions. They are preoccupied with stock reports and profit margins. You have to recognize that asking the retailer to pay more is much more fair than forcing an injured child who is 100 percent innocent of any wrongdoing to receive only a fraction of the compensation that will allow him to return to as retail chain is partially to blame for, actually occurred. And I think this provision, this provision that I am discussing now--and it is hard to choose because there are a lot of bad ones in the bill--more than any other one in the bill as revealing the outlandish proposition that this bill is fair. It is this provision that changes the complexion of our legal system. This legislation will alter the precept of our legal system to say that a victim of wrongdoing and negligence is no longer the principal concern of the tort law. The principal concern will now be the profits and economic health of a business interest that has been convicted by a jury of negligence in the manufacture, sale, and use of a defective product. This is about companies that have been adjudicated guilty of making something that did not work right and that can hurt people. This is not about companies that have been found to be innocent. This legislation is grounded in a belief that it is more important for our business and manufacturing communities to remain prosperous, very prosperous in many cases, and shielded from liability than it is to return an innocent victim of a defective product back to a state as close as possible to their well-being before the accident occurred. So, Mr. President, I look forward to returning to discuss a lot of the specific amendments and issues in the bill. Let me just conclude my opening statement by saying that I believe these choices here are fairly clear, the lines are fairly well drawn, and that bill is a bill that definitely deserves to go down to defeat in the Senate. I thank the Chair and I yield the floor. Mr. GORTON addressed the Chair.

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, like every Member of this body and millions of people around the globe, I deplore in the strongest possible terms the senseless murders of the innocent children and adults in Oklahoma City. This was an atrocity and a barbaric act against humanity that truly shocks the conscience. I have joined in voting for the resolution presented by the majority leader and the minority leader because I wholeheartedly agree with virtually every statement made in the resolution. Congress must condemn, in the strongest possible terms, the heinous bombing attack against innocent children and adults. Congress should sent its heartfelt condolences to the families, friends, and loved ones of those whose lives were taken away and injured by this abhorrent and cowardly act; and express its hopes for the rapid and complete recovery of those wounded in the bombing. Congress should commend the rapid actions taken by the President to provide assistance to the victims and apprehend the perpetrators of this horrible crime. I also believe that we should be sure that Federal laws aimed at combating acts of terrorism are comprehensive and effective in preventing and punishing these acts. At the same time, I must express one reservation concerning one provision of the resolution that indicates cogresssional support for the President and the Attorney General's position that Federal prosecutors will seek the maximum penalty authorized by law, including the death penalty, for those responsible. I am opposed to the death penalty, but I recognize that current as Oklahoma City. I understand the feelings which lead people to call out for imposition of the death penalty in heinous cases, such as this. However, I do not believe that it is generally the Senate's role to make a statement on what specific type of penalty the prosecutors should seek in any particular case, whether it be the death penalty of life imprisonment or whatever. Congress should not endeavor to step across the line which separates the judicial functions of the United States to attempt to direct prosecutors in the discharge of their functions. The law currently provides for the death penalty in this case and regardless of whether I support or oppose these provisions in existing law, it is for the Federal prosecutors, not Congress, to determine what penalty should be sought and ultimately, it is for a jury of Americans to make the final judgment as to guilt and punishment for those who are brought to trial in this case.

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, I voted for the Harkin amendment to transfer $40.5 million from the Board for International Broadcasting and Radio Free Europe/Radio Liberty, Inc. to the Corporation for Public Broadcasting and the seniors community service program because I believe they are higher national priorities than overseas broadcasting is. Last year I led the fight to reduce RFE/RL's budget from $220 to $75 million--by two-thirds--and to slash their outrageous management perks because I believe that RFE/RL is a cold war relic, which also suffered from terribly sloppy fiscal management in the past. I do have some concerns about this formula, however, During the debate on consolidation last year, we discovered that because of contractual obligations that the BIB never should have entered into on behalf of the U.S. Government, we have to spend some money this year in order to cap RFE/RL at $75 million next year. It seems to make little sense, but I have done the math many times, and unfortunately, concluded that these sums are necessary if we are to downsize. It actually demonstrates how this organization ran amok for years under the guise of national security interests. In any case, I am concerned that if BIB funds are rescinded this year, we may not be able to reduce fully to $75 million next year. At the same time, I think CPB is a far better investment that so- called surrogate broadcasting--particularly when we already have radio services to the transitioning democracies through the Voice of America. I am carefully monitoring RFE/RL's budgeting and expenditures. If their request exceeds $75 million next year, I will be the first to propose their termination.

Mr. FEINGOLD

Mr. FEINGOLD. I thank the Chair. I thank the Senator from Illinois. I appreciate hearing her remarks, particularly on affirmative action. Mr. President, I ask unanimous consent that I my speak as if in morning business.

Mr. FEINGOLD. I thank the Chair.

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, I want to state first of all that, as we get to the end of the Republican contract of 100 days, it is time to take stock. Everyone is taking stock of what is in the contract, what is passed, what has not passed, what is not in the contract. The piece I want to discuss today is something that just is not included; that is, whether we are going to ban the practice of allowing gifts and special benefits from private interests to Members of Congress. I want to thank my colleague, the Senator from New Jersey, Senator Lautenberg, and the Senator from Minnesota, Senator Wellstone, for keeping up this fight during a series of months when in effect it appears that the effort to ban the gifts has been ruled out of order. It is not part of the contract. So we do not come out here and talk about it. This came up in the very first week when we addressed something that Democrats have supported that was included in the Republican contract-- there have not been many--namely to make sure that Members of Congress have to live by the rules that we make for everyone else. It makes sense. It passed overwhelmingly, if not unanimously, and a lot of us thought--certainly the three Senators behind the gift ban--what a perfect opportunity the first week to get rid of this outrageous practice. So we tried to put it on the bill. We were defeated by almost a pure party line vote. It is not very surprising in light of the fact that the new majority wanted to set the agenda. I understand that. We protested. But I certainly did not see it as outrageous given the fact that it was the first week and that there would be other opportunities. At that point, though, we received something that I think most of us perceived as an assurance that the gift ban issue would come up in a timely manner. This is not something that needs to be evaluated at length anymore such as welfare reform or the whole issue of how to cut the Federal deficit. Those are very complicated subjects. This is an easy subject. It is not the kind of thing that should wait until later this year or the end of session. It is important that the gift ban be enacted now so that the negative effect it has on this institution and the perceptions of this institution are mitigated now. But that is not what has happened. The distinguished majority leader on January 10 said that it was his intent to try to move the bill as quickly as he could. He said: I am not certain about any date. I am not certain it will be May 31. It could be before, maybe after May 31. Some of us hoped at least the end of May would be a good target time to solve this problem, certainly by the Memorial Day recess. Unfortunately, Mr. President, that is not the position now. We have received a list not too long ago of must-do items entitled, ``The must- do list for Memorial Day Recess, nonexclusive.'' Among the items listed on there are some very important items: The defense supplemental appropriations bill, the line-item veto, which we have taken care of in this House, regulatory moratorium bill, which we have moved out, product liability, the self-employed health insurance extension--we have taken care of that--FEMA supplemental, which we are dealing with now, crime bill, budget resolution, telecommunications bill, and various other items are listed as likely. Nowhere on that list is there any suggestion either that we will be taking up the gift ban, or that we are likely to take up the gift ban before the Memorial Day recess, so I am beginning to get concerned. The majority leader had given us what I thought was a pretty strong commitment this bill would be taken up in a reasonable time but we are not getting that indication now. And I am beginning to wonder why. Mr. President, a lot of things have not surprised me about these first 100 days of the Republican contract. That does not mean I like them, but they did not surprise me. I am not surprised that the House of Representatives, that talked so loudly about deficit reduction, yesterday passed a $200 billion step in the wrong direction in the form of tax cuts for everyone including some of the very wealthiest people in our society. I am not surprised. The Republican contract was voodoo mathematics from the beginning. It is about having your cake and eating it, too, saying you are for deficit reduction, saying you are for balancing the budget and then as fast as you can trying to make sure that everybody in the country is happy with you by giving you a tax cut that you cannot afford. I am not surprised by that. I was not surprised but dismayed that the Republican contract does not even mention campaign finance reform. The American people want campaign finance reform, but it is very easy on that issue to confuse people, to say that if the Democrats write the bill, it is going to help out the Democrats; if the Republicans write it, it is going to help the Republicans. And it is terribly confusing because it involves so many different issues of PAC's and campaign limitations, contribution limitations. I think it is a tragedy that it was not a part of the contract and before us. But that does not surprise me. I would have expected that especially after the effort to kill the campaign finance reform bill in this body last year. I am not surprised about the complete ignoring of the whole health care issue in the Republican contract, which everybody in the Senate said was an important issue; everybody said they wanted universal coverage somehow and acknowledged the 40 million Americans with no health care coverage. Everybody said we have to deal with it somehow, but there is no action on it. There is hardly mention of it. Again, though, Mr. President, I am not surprised. I saw that one coming. Health care became a symbol of something that Government should not get involved in at all during the 103d Congress, and I think that is a regrettable result. What I am surprised by, Mr. President, is that the folks running the Republican contract believe that it is just fine to not include the gift ban and not take it up in a timely manner. It is not important enough apparently to be handled in the first 100 days. I thought it was just too obviously inconsistent with the tone and the spirit of the Republican contract and the November 8 elections to ignore the fact that the gift ban is one of the greatest symbols of the corruption that exists in this town. That is what I would have thought. After eliminating the free gym, the free health care, the special stationery, and all the little perks that certainly should go--and I am glad they are gone--I would have thought it was just incredible that either party felt safe and secure not trying to get rid of the use of gift giving to Members of Congress. It seems like just offering up raw meat to the folks who do the ``Prime Time'' television show, begging them to come and photograph Members of Congress on tennis trips paid for by special interests. That is what I would have thought. But that is not the perception. That is not the approach. The approach is to stonewall the gift ban issue. And why would Members of Congress continue to allow that perception to exist? Well, I guess the conclusion I have come to is because the giving of gifts to Members of Congress by private interests, by special interests--not by the Government--is not any old perk given by the Government like the haircuts and changed. It is something different. The practice of gift giving and special interest influence behind closed doors is a key link in a chain of influence, Mr. President, a circle of influence that operates in this town to create a culture of special interest influence. Among the links in this chain are the practice of the revolving door--Members of Congress and staff members working a while here and then finding a nice job downtown and finding out that they can, in effect, trade on their experience here to get a job lobbying later on. That is one link. Another major link, of course, is the horrible problem of the way our campaign financing system works--the news today in the Washington Post of the incredible numbers of new contributions coming into the national Republican committee now that they are in charge of both Houses. You can mention the book deals. You can mention the piece of legislation that is before us in the Senate Judiciary Committee today, the so- called regulatory reform bill. Mr. President, in that bill it is seriously proposed and apparently is going to be passed that the review of these regulations, when they get to the highest level, will not be done by a disinterested group but will include a so-called peer review panel that will include the very interests that have a financial interest in the outcome of what happens with those rules. That is a link in this chain. And so is the practice of giving gifts and free trips by lobbyists to Members of Congress. The gift giving practice is the piece of the chain of special influence that has to do with feeding and pampering Members of Congress, and it is part of a system that tears the people of this country away from the people they thought they elected to represent them. It is no wonder that the Republican contract does not mention the gift ban. It is no accident that the 104th Congress blocked action on that issue so far. Is it not interesting, if you listen to the talk show hosts, the rather conservative talk show hosts that talk about all the perks in Congress, they will talk about the pension problems here and the fact that the pension system needs reform, which I agree with, they will talk about anything that has to do with a Government perk but they seem to not talk about this practice of meals and gifts and special benefits, personal benefits to Members of Congress. The only time I have ever heard it discussed on one of those shows was on the Jim Hightower show. He was interested in pointing out what happened the first week of Congress. But basically it is not mentioned. I can tell you the failure to mention it is not because it is something very difficult to enact or follow. A gift ban works very, very well. I have said many times in the Chamber--I guess I will be saying it many more times--we have had a law basically banning all these kinds of gifts in Wisconsin for 20 years. It has worked extremely well. Although we certainly have problems with special interest influence in our Government as well, it is a very different culture in Wisconsin government because of the Wisconsin gift ban. The type of thing that happened that was described in the Washington Post this week could not happen. In an article in the ``In The Loop'' section a couple of days ago, entitled ``Hospitality Sweet,'' a recent fact finding trip was described as follows: Some House Republicans have come up with a neat way to fulfill their promise of slashing the cost of Congress. When members of the Resources Committee recently held field hearings on endangered species and wetlands in Louisiana, the trip included dinner at Armand's in the French Quarter. Who picked up the tab? The not-so-disinterested Louisiana Farm Bureau Federation, Midcontinent Oil and Gas Association, American Sugar Cane League and Louisiana Land and Exploration company. And then: A week later, it was dinner in San Antonio, sponsored and paid for groups like the Texas Cattle Feeders Association, Texas Sheep and Goat Raisers, San Antonio Farm and Ranch Real Estate Board and Texas Association of Builders. Mr. President, there was a rather lame response from one of the staff members of the House Members trying to explain why there was no problem with this. Mr. Johnson said: We just consider this to be local hospitality. It's an opportunity for Members to discuss issues with people from Louisiana.* * * We didn't solicit any of these companies. I feel confident if any environmental groups had come forward and offered to have a luncheon or media opportunity we would have tried to accommodate them. Mr. President, if they try to accommodate all these meals, they are going to have to go to a weight-loss clinic pretty soon. In Wisconsin, you cannot do this. If you want to meet with constituents and sit down with them at a meal, that is fine, but you have to pay your own way. Sometimes the waiter or the waitress is a little irritated because they have to write out separate checks. But that is the worst thing that happens. You pay your own way. You do not do the kind of stuff that was done just recently by the House Republicans who said they felt they had to do this in order to investigate concerns in their State. Mr. President, the problem is not that we cannot enact a gift ban or comply with one. It is just too darn simple to get rid of this horrible practice. Mr. President, let me just be clear. I consider this gift ban issue to be very, very important. But I do consider it to be sort of the kid brother to the bigger issue, which I consider to be campaign finance reform. I am not suggesting in any way that getting rid of gift-giving would solve the problem of special interests and the problem of lobbying. I think the answer there is to limit the amount of money, total amount of money, that can be spent, or at least make sure that those who abide by the limits get an advantage to make up for the loss of advantages of the greater spending. I also think you ought to get a majority of your campaign contributions from your own home State, something many Republicans have proposed. I think that would really dilute and limit the influence of special interests and lobbyists in the campaign finance context. But this is different. This is about personal enrichment. This is about, in effect, having an opportunity to subtly buy the time, the precious time, of Members of Congress. This is about creating a feeling of personal, not professional, obligation between one individual and another, one who happens to be a Member of Congress, one who happens to be a lobbyist for a special interest. This is about the opportunity to use gift giving and buying dinners and giving trips to achieve undue access to Members of Congress. It is part of a chain, as I have had said, it is part of a circle of influence that I think has broken down the trust between the American people and their elected representatives.

Mr. FEINGOLD. I am happy to respond to the Senator from North Dakota. I did not want to see that headline this morning, but I did. And I did have a chance to take a look at it. Let me say, first of all, to the Senator from North Dakota that long before I had the honor of being elected to this body, I admired the Senator from North Dakota when he was in the other body as one of the true leaders in the Congress on the issue of tax reform and tax fairness. He knows this stuff. And so when he speaks about what this is all about, and what the tax cut for all Americans supposedly, but especially for wealthy Americans, is all about, he knows exactly what he is talking about. He was a key force for the positive aspects of the 1986 tax reform, parts of which I think are at least an example of when Washington got some things right. So I think his comment is very appropriate. What I want to say in response, since I know the Senator wants to speak at more length about the tax cut, is that there is a common thread between the various parts of the contract. There is a connection between the fact that the gift ban is not mentioned in the contract and campaign finance is not mentioned in the contract, but the tax cuts are there for the wealthy, the so-called regulatory reform is included for the very interests that probably still do need some regulation. The common thread is this: If you have a lot of resources and you have a lot of lobbyists here in Washington, you are not going to get nicked by the Republican contract. You just are not. If you are on welfare, you are going to get nicked. If you have a lunch coming to you at school, you are going to get nicked. But if you have any kind of serious interest supporting you on this Republican contract, you are not going to get nicked. It is worse than that. This giant $190 billion piece of legislation that the House passed makes a complete farce out of the notion that the contract has anything to do with deficit reduction. Everyone knows it. I have to say to the Senator from North Dakota and the Chair, I was the first Member of Congress--I am proud of this--of 535 Members of Congress, I was the first one to say ``No tax cuts.'' I said it the day after the November 8 election and I said it the day after the President proposed his tax cut. The Los Angeles Times said there was one lone voice that thinks this should not happen. It is not nice to say, ``I told you so.'' I do not get to say it very often. On this one, it feels good to say it; that the people of this country know better than the people in this town and the people in this town are beginning to wake up, especially in the Senate, that it is a total fraud on the American people to say you are for balancing the budget and then start handing out $200 billion or $700 billion in tax cuts, tax gifts. The sad thing is, it is the repeating gift after gift after gift after gift to the same people.

Mr. FEINGOLD. Yes.

Mr. FEINGOLD. Mr. President, if I may respond briefly, I am very glad the Senator mentioned some of the specifics of the 1986 bill, because as he was speaking, I realized, in 1986, we had a Republican President and, I believe, we still had a majority of Republicans in the Senate. Although that bill had flaws, there were changes in accelerated depreciation, and limits to the practice of using tax loss farming, which was something of great concern to farmers in Wisconsin. There were limits on some of the most visible aspects of tax deductions that seemed to be unfair. What is ironic, Mr. President, is that here we have now, again, the majority of the Republican Party in the U.S. Senate--as well as the other body--and they are doing just the reverse. There was a book written about the success of the 1986 bill called ``Showdown at Gucci Gulch.'' Gucci Gulch, of course, is where all the lobbyists were with their Gucci shoes, and it was a Republican, the Senator from Oregon, who I believe chaired that famous meeting. Tax loopholes were limited. Here we are, again, many years later with just the reverse happening: The restoration of some of these special deals at a time when the deficit is far worse than it was in 1986. So let me simply conclude, Mr. President, by saying what I have told my constituents back home regrettably. They say, ``How is it going out there in Washington? How is the Republican contract working out? Are you cleaning things up?'' And I have to tell them the truth, and the truth is that the lobbyists in Washington have never had bigger smiles on their faces than they do now. This is the happiest time for lobbyists in America in many, many years, because they are running the show. And as a final example, there was a rather disturbing occurrence in front of the Senate Judiciary Committee recently where our staff members were told to come to a staff briefing by the Republican majority staff on the regulatory reform bill. As I understand it, although I have not been here for very long, it is normal practice for majority staff folks to brief the minority staff on what is going to be proposed by the Chair. But were briefed by a couple of attorneys. And when they were asked who they were they said, ``We're the folks who represent 12 to 15 corporations that basically wrote this thing.'' Apparently, several times, when questions were asked about details of the document, the Republican majority staff was even overruled by these attorneys, lobbyists from downtown Washington. I think that is another symbol, another link in the chain of special influence that I am afraid has infected this town more this year than at any time in recent history. So, Mr. President it is time to pass the gift ban. It is time to clean that up on the bipartisan basis that I thought we were going to do last time with an overwhelming 93-to-4 vote. I am very delighted to yield in order to allow further discussion of what I consider to be an even more important issue: The need to let the Senate do its job by getting rid of this foolish tax cut at a time when all available dollars have to be devoted to eliminating the Federal deficit. I yield the floor. Mr. DORGAN addressed the Chair.

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, the Central African nation of Burundi is once again on the brink of disaster. Exactly 1 year after the world witnessed a genocide in Rwanda, and 1\1/2\ years after ethnic violence between Hutus and Tutsis killed more than 100,000 people in Burundi, we are watching a similar catastrophe unfold before our eyes again. We must do what we can to try to deter another bloodbath. After months of a tense calm in Burundi, political violence began escalating in the last several weeks as extremist Tutsi militia, with the complicity of the Tutsi-dominated military establishment, stepped up attacks against Hutus, and Hutu extremists prepared for military activity. The violence directly threatens the power-sharing agreement negotiated in September 1993, and disrupts what we all had hoped would be a transition to coexistence in Burundi. In the last couple of weeks, Amnesty International reports that hundreds of people have been killed or disappeared in Burundi, and thousands of Hutus have fled their villages to seek refuge in Zaire and elsewhere. Some are being held hostage in their own villages, surrounded by hostile armed youths and cut off from outside contract. Rwandan refugees who sought refuge in Burundi last year are now beginning to flee to Zaire and Tanzania out of fear that similar terror will prevail in the refugee camps. The latest round of violence comes on the heels of the assassination in early March of the Minister for Mines and Energy, Ernest Kabushemeye, a Hutu leader, and the discovery of the dismembered body of a retired Tutsi army officer, Lt. Col. Lucien Sakubo. A week later, 17 more, including 3 Belgians and a 4-year-old child, were killed in a highway ambush by Hutu extremists outside of Bujumbura. Last weekend, at least 200 people were killed people were found dead, lying along a rural road south of Bujumbura. The situation in Burundi has so deteriorated that families of American and European diplomats are being urged to leave. After initially resisting such guidance, the dependents of the United States Ambassador to Burundi, Robert Krueger, also left this week. The Prime Minister of Burundi, Antoine Nduwayo, has issued a plan of action designed to strengthen law and order in Burundi, and the majority leader of the Burundian Parliament, Bubugive, is traveling throughout Africa to coordinate regional efforts to help Burundi. We should be prepared to offer any support we can for these diplomatic initiatives. Mr. President, the U.N. Special Representative, Ahmedou Ould Abdallah, has told the Associated Press that ``this country * * * is headed toward collision with disaster.'' And, in reaction to the violent sweeps of Hutu neighborhoods by Tutsi gangs last weekend, Burundi's President, Sylvestre Ntibantunganya, predicted, ``I really see a genocide, because those things were well prepared and carried out fairly systematically.'' Genocide is a loaded word, and I use it very carefully and sparingly. Given the past events, Burundi's current crisis could explode into a second genocide in Africa within a year. President Clinton has taken a personal interest in Burundi, broadcasting a plea over Voice of America to the people of Burundi to ``say no to violence and extremism.'' National Security Adviser Tony Lake and Secretary of State Christopher have called for diplomatic intervention. Our Ambassador to Burundi has done a stellar job at communicating the dangers and involving himself where appropriate. I admire and thank him for his commitment. As events were worsening this week, U.N. Secretary General Boutros Boutros-Ghali proposed that a U.N. peacekeeping force be earmarked for intervention so that if there is a need, troops can be promptly deployed. Last week, the U.N. Security Council also issued a warning that those responsible for ethnic violence in Burundi could eventually be tried in international courts for crimes against humanity. I was encouraged by this since I, along with the Senator from Kansas, Senator Kassebaum, chair of the Africa subcommittee, and 10 of our colleagues sent a letter to our Ambassador to the United Nations, Ambassador Madeleine Albright, urging her to support the request made by the Government of Burundi to the U.N. Security Council to establish a judicial commission of experts. This commission would be essential to investigating those who have committed past human rights violations, and could serve as a deterrent for others. If extremists who perpetuate ethnic violence in Burundi go unpunished, further violence would only be encouraged. Wednesday marks the anniversary of the beginning of the genocide in Rwanda. The Subcommittees on African Affairs of both the House and the Senate will hold a joint hearing on Central Africa. I urge my colleagues to pay attention to this hearing because we will hear testimony on the aftermath of last year's violence, and examine options to avert another catastrophe this year. I also expect we will discuss how American initiatives, such as the African Conflict Resolution Act, introduced by the distinguished Senator from Illinois and past chair of the subcommittee, Senator Simon, can help avoid future tragedies. Our national attention is properly turned to rescissions, constitutional amendments, and other pressing domestic matters now. But we would be remiss to ignore disaster elsewhere because it will come back to haunt us. We may be called upon to contribute money and supplies for humanitarian relief; or support U.N. troops deployed to quell the rampant, sickening violence; or deal with destabilization in Africa because of a massive refugee spillover; or we may face other unforseen long-term consequences, such as threats to our health, environment, food supplies, and who knows what, if we completely ignore Central Africa. I urge my colleagues to join us in confronting the complicated problems in Central Africa, and to consider the price we may pay--not to mention the humanitarian disaster that may result--if we pretend Africa does not exist.

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, today I am introducing the legislation that will restore some fairness to the Dairy Price Support Program. Previous legislative and administrative attempts to correct the problem in the system have been unsuccessful. It is time to try a new approach. Under the Dairy Price Support Program, USDA set Commodity Credit Corporation purchase prices for manufactured daily products in order to indirectly support the price of milk. Rather than requiring the processors to pay dairy producers the support price, the Dairy Price Support Program sets the support price for the individual manufactured products at levels sufficient to achieve plant returns that in turn, allow processors to pay farmers the specified support price. This requires a determination by USDA as to the appropriate plant margin. This margin is more commonly known as a ``make allowance. '' Despite changes in the 1990 farm bill, some States in this country, are still able to set prices for milk used to make cheese, butter, and nonfat dry milk such that processing plants are guaranteed a higher profit margin--or make allowance--for their products than allowed under the dairy price support system. That allowance provides companies in those States with an artificial competitive advantage. At the same time, processors in those States sell significant amounts of surplus dairy products to the Federal Government. The bill I am introducing today sends a clear message to those States--it says ``You can't have it both ways.'' While the specifics of this issue are complex, the fundamentals are clear and understandable. If States create pricing structures to give their milk processors a leg up, they cannot do so at taxpayers expense. That is exactly what is happening in the State of California today. Because of the California State pricing system, cheese, butter, and dry milk processors are provided such a high make allowance that they can sell their products competitively on the east coast even with the high cost of transportation. Meanwhile, other States must abide by the manufacturing margin set by the Department of Agriculture. Currently, the State of California provides their plants with a make allowance that is 57 cents per hundredweight higher than the national make allowance for cheese, and nearly 60 cents per hundredweight higher than the national make allowance for the processing of butter and milk powder. California processors pay their dairy farmers less for the milk they need to make cheese, butter, and powder, and let farmers absorb the market risk, while taxpayers absorb the cost. Meanwhile, processors elsewhere in the country who are playing by the an associated minimum price for milk used in dry milk production, are forced to compete with California's products in the grocery store's dairy case. If we don't change this inequity, processors and dairy farmers outside of California will continue to lose. The growth in the California dairy processing industry in the last 10 years has been dramatic--and it is due--at least in part--to the higher make allowance. The higher profitability of the plants drives the need to operate plants at capacity and build even more plants creating a demand for milk that spurs on the growth of milk production. The lack of risk for processors makes dairy manufacturing even more attractive to investors. As one might expect, Mr. President, the sales of surplus dairy product to the Federal Government from California have been dramatic as well. Between 1990 and 1994 marketing years, one State--the State of California--sold 35 percent of all of the surplus butter purchased by the Federal Government and 42 percent of all the nonfat dry milk purchased by the Government. Not only does the higher make allowance provide California dairy product manufacturers with an artificial competitive advantage in the market place, it encourages milk production and increases surpluses, driving down national milk prices to farmers. Congress recognized the importance of this issue in the 1990 farm bill when we prohibited any State from having a higher make allowance than the Federal make allowance. Five years later, the law has not been implemented. The Secretary's attempt to implement the law has already been the subject of seven lawsuits. Complaints about the Department's proposed rule have at the same time charged the rule will have no impact whatsoever or be wholly devastating on both the California processing industry and the national dairy industry. Well, Mr. President, I doubt that both could simultaneously be true, but it is hard to know which will be the final outcome. It is time to restore some reason to this drawn out administrative process. My bill does that. It simplifies the law by removing the overall prohibition on States having higher make allowances. It eliminates the existing statutory requirements for penalties and it removes the burden from the producer to bring a complaint against his processor to USDA. My bill simply requires the Commodity Credit Corporation to reduce the price it pays to any plant or person selling surplus dairy products to the Government operating in a state with a pricing system that provides a higher make allowance, by an amount that is equal to the difference between the State and Federal make allowance. Regardless of the point of sale of the dairy products, if they were produced by a plant in a state with a higher make allowance, the CCC purchase price must be reduced. This bill also explicitly includes cooperatives which have been exempted from the proposed USDA rules. Since dairy cooperatives market most of the milk in California, it is essential that they be compelled to comply with the requirements of this bill. This bill is based upon a proposal by the Lakeshore Federated Dairy Cooperative in Wisconsin and their member-producers who are fed up with USDA's inability to implement current law, the artificial competitive disadvantages they face in the dairy case, and the bald-faced abuse of the dairy price support system that has gone unfettered for the last 15 years. The appeal of this approach is obvious. It allows an individual State to have its own pricing structures, but forces them to play by the rules of the Federal dairy price support program if they wish to take advantage of it. States should not be allowed to increase the cost of the dairy price support program to taxpayers and depress national prices to other producers in the process, while providing their own dairy industry with an additional processing subsidy. The legislation I am proposing not only makes more sense than the current proposal, it also saves money. It has less of an impact on California producer prices and will not lead to significant increases in milk production. In fact, preliminary CBO estimates indicate that this legislation, if enacted, would save upwards of $40 million over 5 years. I think this is a solid compromise to a long-standing problem that will persist if Congress fails to act. I encourage my colleagues to support this legislation. I ask unanimous consent that a letter from the Lakeshore Federated Dairy Cooperative be included in the Record, and that the text of the bill also be printed in the Record.

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, today I rise to introduce a bill which will be a first step toward rectifying the inequities in the Federal milk marketing order system. The Federal milk marketing order system, created nearly 60 years ago, establishes minimum prices for milk paid to producers throughout various marketing areas in the United States. My legislation is very simple. It identifies the single most harmful flaw in the current system, and corrects it. That flaw is USDA's practice of basing prices for fluid milk in all marketing ares east of the Rocky Mountains on the distance from Eau Claire, WI, when there is no longer any economic justification for doing so. The price for fluid milk increases at a rate of 21 cents per hundred miles from Eau Claire, WI, even though most milk marketing orders do not receive any milk from Wisconsin. Fluid milk prices, as a result, are $2.98 cents higher in Florida than in Wisconsin and over $1.00 higher in Texas. This method of pricing fluid milk is not only arbitrary, it is both out of date and out of sync with the market conditions of 1995. It is time for this method of pricing--known as single-based-point pricing-- to come to an end. The bill I am introducing today will prohibit the Secretary of Agriculture from using distance or transportation costs from any location as the basis for pricing milk, unless significant quantities of milk are actually transported from that location into the recipient market. The Secretary will have to comply with the statutory requirement that supply and demand factors be considered as specified in the Agricultural Marketing Agreement Act when setting milk prices in marketing orders. The fact remains that single-basing-point pricing simply cannot be justified based on supply and demand for milk both in local and national markets. This bill also requires the Secretary to report to Congress on specifically which criteria are used to set milk prices. Finally, he will have to certify to Congress that in no way do the criteria used by the Department attempt to circumvent the prohibition on using distance or transportation cost as basis for pricing milk. This one change is so crucial to Upper Midwest producers, because the current system has penalized them for many years. By providing disparate profits for producers in other parts of the country and creating artificial economic incentives for milk production, Wisconsin producers have seen national surpluses rise, and milk prices fall. Rather than providing adequate supplies of fluid milk in some parts of the country, the prices have led to excess production. The prices have provided production incentives beyond those needed to ensure a local supply of fluid milk in some regions, leading to an increase in manufactured products in those marketing orders. Those manufactured products directly compete with Wisconsin's processed products, eroding our markets and driving national prices down. In the past 4 years, markets far from Eau Claire, WI, sold most of the surplus manufactured dairy products to the Federal Government under the dairy price support program. The Minnesota-Wisconsin area--the supposed surplus area of the country--in reality accounts for only a small percentage of actual surplus sales. The perverse nature of this system is further illustrated by the fact that in 1995 some regions of the United States, notably the Central States and the Southwest, are now producing so much milk that they are actually shipping fluid milk north to the Upper Midwest. The high fluid milk prices have generated so much excess production, that these markets distant from Eau Claire are now taking not only our manufactured markets, but also our markets for fluid milk, further eroding prices in Wisconsin. Emphasizing the market distorting effects of the fluid price differentials in Federal orders is the Congressional Budget Office estimate that eliminating the orders would save $669 million over 5 years. Government outlays would fall, CBO concludes, because production would fall in response to lower milk prices and there would be fewer Government purchases of surplus milk. The regions which would gain and lose in this scenario illustrate the discrimination inherent to the current system. Recent economic analyses show that farm revenues in the absence of Federal orders would actually increase in the Upper Midwest and fall in most other milk-producing regions. I am not advocating total elimination of the current system at this point, however, the data clearly show that Upper Midwest producers are hurt by distortions built into a single-basing-point system that prevent them from competing effectively in a national market. While this system has been around since 1937, the practice of basing fluid milk price differentials on the distance from Eau Claire was formalized in the 1960's, when arguably the Upper Midwest was the primary reserve for additional supplies of milk. The idea was to encourage local supplies of fluid milk in areas of the country that did not traditionally produce enough fluid milk to meet their own needs. Mr. President, that is no longer the case. The Upper Midwest is neither the lowest cost production area nor a primary source of reserve supplies of milk. Milk is produced efficiently, and in some cases, at lower cost than the Upper Midwest, in many of the markets with higher fluid milk differentials. Unfortunately, the prices didn't adjust with changing economic conditions, most notably the shift of the dairy industry away from the Upper Midwest and toward the Southwest. Fluid milk prices should have been lowered to reflect that trend. Instead, in 1985, the prices were increased for markets distant from Eau Claire. USDA has refused to use the administrative authority provided by Congress to make the appropriate adjustments to reflect economic realities. They continue to stand behind single-basing-point pricing. The result has been the decline in the Upper Midwest dairy industry, not because they can't compete in the marketplace, but because the system discriminates against them. Since 1980, Wisconsin has lost over 15,000 dairy farmers. The Upper Midwest, with the lowest fluid milk prices, is shrinking as a dairy region. Other regions with higher fluid milk prices are growing rapidly. In an unregulated market with a level playing field these shifts in production might be fair. But in a market where the Government is setting the prices and providing that artificial advantage, the current system is unconscionable. This bill is a first step in reforming Federal orders by prohibiting a practice that should have been dropped long ago. However, for Congress there is a long way to go. Through the process of the 1995 farm bill we will have to determine not only what Federal orders should not do, but also what they should do, and, indeed, if they are still necessary. My bill is a starting point. I look forward to working with my colleagues and with the dairy industry in the upcoming months to determine more specifically how we should establish orderly marketing conditions. However, this bill identifies the one change that is absolutely necessary in any outcome--the elimination of single basing point pricing. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.