Russell Feingold

Mr. FEINGOLD

Mr. FEINGOLD. I yield 15 minutes to the Senator from North Dakota.

Mr. FEINGOLD. Mr. President, I yield myself such time as required. The Senator from Texas knows very well that my goal in working on this amendment has nothing to do with trying to upset the President's budget. We have talked together, worked together on the Budget Committee, and he knows exactly what I and other Members are trying to do. We think there ought to be some rules, there ought to be some caps, there ought to be some budget discipline. I don't think he could point to one shred of information or comment I have made throughout the months to suggest it has anything to do at all with trying to disrupt the President. I remember welcoming the comments of the OMB Director when he suggested some aspects of what we were trying to do made sense. I will work with anybody on this in order to get it done, because in the 10 years I have been in the Senate, we have had rules, we have had budgets disciplines, and they have had good results. Sometimes when the Democrats were in the majority, and sometimes when the Republicans were in the majority, at least on this issue, I have seen this body function, and function well, but only because there were caps, only because there were rules and because there were enforcement mechanisms. The Senator from Texas complains we are doing this outside of the budget process. I agree with him. This is not the ideal way to do this. But he knows why. He saw the efforts we made in the Budget Committee and the difficulties we had. We could not get it done there. It is not my idea to have to do it on the Defense bill. The Senator says, even if the Senate were considering the budget resolution, that the resolution could not have accomplished the extension of the budget process that our amendment would do. But the Senator from Texas knows that a budget resolution, unlike this one, cannot constitutionally bind the President or his OMB. We have to pass a law, not just a resolution to extend the Budget Act. I would say nobody in the history of the Senate knows this better than the Senator from Texas, who is very famous across this country for passing statutes to control Government spending. A statute has much more enforcement power than simply doing it on a budget resolution. The Senator also suggests this is not going to go anywhere because the House will not accept it. I certainly agree with my chairman, Senator Conrad. The one thing that makes sure nothing happens is if we do not do anything at all in the Senate. If we send a message to the House that we do not need rules and disciplines, that is an invitation to them to do nothing. On the other hand, if we do something here, and even though the Senator from Texas knows it is much less than I wanted to do at the beginning, and less than he wanted to do, maybe it will put a little pressure on the other body. Maybe they will hear from their constituents, who will say: At least in the Senate they still believe there ought to be some limits and some caps and some rules. Why don't you folks in the House do the same thing? If we do nothing, there is no pressure on them. As the chairman indicated, if we at least put a marker down here, put something in this bill that suggests some limits and some rules, we have a chance that something will come through in a conference report that will achieve bipartisan limitation on this. We have now heard arguments about the levels in our amendment being too high. We also heard arguments that they are too low. In this respect the debate is taking on sort of the hallmarks of any debate to set a level. There is always going to be disagreement about the amount. But let's be clear about the amount in this 2-year period. The chairman of the committee has indicated we have sought to use what I believe to be the most neutral starting point. The number for 2003 is what the Budget Committee reported. It is what we included in the Gregg-Feingold amendment, for which 49 Senators voted, including the Senator from Texas. On June 5, he voted for these exact 2-year limitations. I admit there were 3 other years there on top of it, but he did vote for these figures for those 2 years. It is also the most neutral and most appropriate figure because it is our best estimate, as the chairman has pointed out, of what the President's budget request actually requires, what it really is when you cut away the gimmicks and see what the real number is. I think this is a consensus number that is reasonable. As the Senator from Texas knows, he and I have worked together in various meetings to try to have an even stronger budget process. We have tried to draft amendments, and we reached agreement on a budget process amendment that, had it been enacted, would have created powerful incentives to reduce the deficit and further protect Social Security. I stood ready and I stand ready to work with him to tighten fiscal discipline. In the battle for fiscal responsibility, I want the Senator from Texas to know I am and will be his ally. But as the Senator from Texas also knows, we did not offer the amendment we drafted. Now the question is, In the absence of that, in the absence of a more perfect solution to the budget process, what will we do? We really only have a couple of choices. We can stand by and simply do nothing or we can at least do this. That is the choice before the Senate today. Nobody really believes there are going to be a lot of real opportunities to do this in the future if we do not do it today. I would prefer a stronger budget process. In fact, not only in committee but on the floor I, with Senator Gregg, fought for a stronger budget enforcement regime, and we offered our amendment to the supplemental appropriations bill. I voted with the Senators from Arizona and Texas when they sought to limit spending on the supplemental appropriations bill. I stood ready, and I continue to stand ready, to work with the Senator from Texas to fight for the process changes that we worked on together. But the amendment that Senator Gregg and I offered received only half of the votes--it actually needed 60 to prevail. The efforts to stop spending items on the supplemental appropriations bill fell well short of a majority, and we have not offered the amendment we worked on together. So we face a very stark choice. We face the expiration of the budget process. We have to face the question, Is the absence of a budget process preferable to the 2-year extension of the existing process that I and Chairman Conrad and Senator Cantwell and now Senator Domenici offer today? Obviously, it most assuredly is not. Even though there are imperfections in the existing budget process, it does provide some budget discipline. It creates 60-vote hurdles for spending measures that exceed the caps. It requires 60 votes to expand entitlements or cut taxes without paying for the cuts. These constraints have been a valuable force for consensus. They have helped ensure the work we do in the Senate can garner the support of three-fifths of the Senate, not just a bare majority. I think these are useful bulwarks in the defense of the taxpayers' dollars. Again, there could be better budget processes. After the adoption of this amendment, if it is adopted, I will still join with others who seek to advance further budget improvements. Even if this amendment is adopted, nothing will stop the Senator from Texas from offering the budget process on which he and I were working. But at least let's draw the line. Let's at least prevent further erosion of budget discipline. Let's seek further improvement where we can, but let's at least ensure that things do not get worse. The Senator from Texas may consider the amendment before the Senate today to be half a loaf or maybe even less. I admit the amendment before the Senate today is not perfect, but it is a far better result than doing absolutely nothing, and that is where we are headed. Nothing is what we will get if the Senate votes down this very modest attempt at fiscal discipline. I urge my colleagues to join at this barricade, if you will, this last stand this year for fiscal responsibility. I urge my colleagues, more than anything else, to do this to defend the Social Security surplus. I urge them to support this amendment. How much time do we have?

Mr. FEINGOLD. Mr. President, the Concord Coalition indicated today that our amendment ``provides a strong and needed dose of fiscal discipline.'' I ask unanimous consent that a copy of the complete Concord Coalition statement appear in the Record.

Mr. FEINGOLD. Madam President, I suggest the absence of a quorum.

Mr. FEINGOLD. Madam President, pursuant to section 904 of the Congressional Budget Act of 1974, I move to waive the applicable sections of that act for purposes of the pending amendment.

Mr. FEINGOLD. Madam President, how much time do we have on our side?

Mr. FEINGOLD. How much time does the Senator want?

Mr. FEINGOLD. Mr. President, I yield 5 minutes to the Senator from New Mexico.

Mr. FEINGOLD. Mr. President, the Senator from Oklahoma argues that we should not have brought up this amendment on this bill. This bill authorizes appropriations for the majority of appropriated spending. It may well be the largest spending bill we consider this year. So I think it is absolutely appropriate to consider the total amount of appropriate spending on this bill.

Mr. FEINGOLD. For a question.

Mr. FEINGOLD. It would be great to have a budget resolution, but far more important, far more useful is a statute to guarantee that these caps and enforcement mechanisms exist to bind both Houses, a mechanism that is actually the law of the land. So this is far more important. This is an appropriate vehicle to do it. Mr. President, I yield the remainder of my time to the Senator from North Dakota.

Mr. FEINGOLD. Mr. President, I ask for the yeas and nays.

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, earlier today, the United States Supreme Court issued one of the most significant decisions curtailing the death penalty since the Court first found capital punishment unconstitutional in 1972, and then reinstated it four years later. In a six to three decision in Atkins v. Virginia, the Court ruled that the execution of the mentally retarded is unconstitutional. The Court concluded that such executions are cruel and unusual punishment in violation of the Eighth Amendment. This decision is a notable turning point for our Nation. Indeed, a national consensus opposing such executions has been growing for some time. In 1989, when the Supreme Court upheld the execution of mentally retarded persons, only two of the 38 States that authorize the use of the death penalty had banned executions of the mentally retarded. Since then, 16 more States have enacted laws prohibiting the practice. Now, 18 of the 38 States that use the death penalty have banned the practice. And of the 20 States in the country that continue the practice, nearly half have pending legislation to halt executions of the mentally retarded. In addition, the Federal Government, which re-enacted the death penalty in 1988, has banned executions of the mentally retarded. A recent poll by the National Journal found that only 13 percent of Americans favor the death penalty for the mentally retarded. As this poll indicates, Americans recognize that it is cruel and unusual to apply the death penalty to adults who have the minds of children. In many cases, mentally retarded adults accused of crimes cannot fully understand what they have been accused of, and often do not comprehend the severity of the punishment that awaits them. Accused adults with low mental capacity are often characteristically eager-to-please, and more likely to falsely confess to a crime. Indeed, as Justice Stevens, writing for the majority, stated, concerning mentally retarded defendants, ``Their deficiencies do not warrant an exemption from criminal sanctions, but they do diminish their personal culpability.'' He wrote: ``Mentally retarded defendants may be less able to give meaningful assistance to their counsel and are typically poor witnesses, and their demeanor may create an unwarranted impression of lack of remorse for their crimes.'' Justice Stevens continued: ``Mentally retarded defendants in the aggregate face a special risk of wrongful execution.'' The Court also reasoned that the usual justifications for capital punishment, retribution and deterrence, do not apply to mentally retarded defendants. With respect to retribution, Justice Stevens wrote that ``the severity of the appropriate punishment necessarily depends on the culpability of the offender.'' But ``[i]f the culpability of the average murderer is insufficient to justify the most extreme sanction available to the State, the lesser culpability of the mentally retarded offender surely does not merit that form of retribution,'' Justice Stevens wrote. He concluded: ``Thus, pursuant to our narrowing jurisprudence, which seeks to ensure that only the most deserving of execution are put to death, an exclusion for the mentally retarded is appropriate.'' With respect to the other justification for capital punishment, deterrence, Justice Stevens wrote that ``executing the mentally retarded will not measurably further the goal of deterrence.'' The Court reasoned: The theory of deterrence in capital sentencing is predicated upon the notion that the increased severity of the punishment will inhibit criminal actors from carrying out murderous conduct. Yet it is the same cognitive and behavioral impairments that make these defendants less morally culpable . . . that also make it less likely that they can process the information of the possibility of execution as a penalty and, as a result, control their conduct based on that information. Today the Supreme Court reflected the sentiments of our nation on this important issue. As the majority stated: ``The practice [of executing the mentally retarded] . . . has become unusual, and it is fair to say that a national consensus has developed against it.'' The majority concluded: ``Construing and applying the Eighth Amendment in the light of our `evolving standards of decency,' we therefore conclude that such punishment is excessive and that the Constitution `places a substantive restriction on the State's power to take the life' of a mentally retarded offender.' '' The Court's decision confirms that our Nation's standards of decency concerning the ultimate punishment are indeed evolving and maturing. Even before today's decision, we have known that the current death penalty system is broken and plagued by errors, including the risk of executing the innocent and racial and geographic disparities. As evidence mounts that the administration of capital punishment is plagued by inexcusable flaws, the American people are taking notice, and taking action. Illinois Governor George Ryan took the courageous and extraordinary step of placing a moratorium on executions two years ago. He also created an independent, blue ribbon commission to review the Illinois death penalty system. The commission released its report earlier this year and made 85 recommendations for improving the administration of the death penalty. More and more Americans are realizing that they can no longer simply look the other way when confronted with glaring injustices. And today, a majority of the justices on our nation's highest court have joined this growing chorus of Americans. I am proud of our Court today. I am proud of a justice system that recognizes that the execution of the mentally retarded is unconstitutional, inhumane, and simply wrong. Today we can declare an important and historic victory for justice. But, while the Supreme Court must continue to scrutinize the capital cases before it, Congress and the American people also have a responsibility to act. Today's ruling presents us with further evidence of the urgent need for a moratorium on executions and a full and thorough nationwide review of the administration of the death penalty. It is time for Congress to support passage of my bill, the National Death Penalty Moratorium Act. We simply cannot continue to look the other way.

Mr. FEINGOLD

Mr. FEINGOLD. Madam President, I have enjoyed listening to the debate so far, and I rise very briefly today in support of the chairman's underlying amendment to terminate funding for the Army's beleaguered Crusader mobile artillery system. I support the decision of the Secretary of Defense to cancel this program. Last month, I actually introduced legislation that would terminate the Crusader, saving the taxpayers an estimated $10 billion over the life of the program. I commend the Secretary of Defense for his efforts to transform our military to meet the challenges of the 21st century and beyond, and agree that the cold war era dinosaurs such as the Crusader should be terminated. The centerpiece of the Crusader system is a 40-ton, 155-millimeter, self-propelled howitzer designed to fire heavy artillery shells long distances to target enemy tanks and other armored vehicles on the battlefield. Each system has two support vehicles. Our military is seeking to be able to deploy rapidly, obviously, to anywhere in the world, but the Crusader apparently is not conducive to such rapid deployment. According to a recent New York Times editorial: If the Army was still facing the Soviet Union across Central Europe or contemplating battle against a similar military power in the coming decade, the Crusader would be indispensable. But the threat has changed and the Crusader program, with a price tag of $11 billion, is not needed and should be cancelled. An editorial in our leading newspaper in Wisconsin, the Milwaukee Journal Sentinel, calls the Crusader a gold-plated weapons system and argues the Crusader is too expensive for a time when even a war-engaged Pentagon must make serious choices about how to spend its money. I agree that it is past time the Pentagon reorient its thinking and its spending requests toward the threats of the 21st century and away from the cold war. Cancelling the Crusader is a step in the right direction. The chairman's amendment would transfer the $475.6 million allocated for the Crusader program into a Future Combat Systems line item within the Army's research, development, testing, and evaluation account. In addition, the Army Chief of Staff would be required to prepare a report on alternatives to the Crusader program and submit it to the Secretary within 30 days of the enactment of this bill. This report would include an analysis of the Army's future artillery needs. I urge the members of the Armed Services Committee and the Appropriations Committee to exercise strict oversight of any reprogramming request that may be submitted as a result of the Army's report. I agree with the chairman of the committee that we should be careful about how the $475.6 million that is shifted into the Future Combat Systems account is allocated. The Future Combat Systems account should not be treated as a blank check. It should not be used as a way to revive part or all of the Crusader program. We should scrutinize carefully how these funds will be spent. I urge my colleagues to support Senator Levin's underlying amendment, and I yield the floor.

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

Mr. FEINGOLD. Mr. President, I send an amendment to the desk and ask for its immediate consideration.

Mr. FEINGOLD. Mr. President, I ask unanimous consent that reading of the amendment be dispensed with.

Mr. FEINGOLD. Mr. President, the Senate began its debate on budget discipline on the supplemental appropriations bill, but we left our work undone. Today, we are here to finish the job. On the supplemental appropriations bill, the Senate debated a 5-year budget process extension that my colleague, Senator Gregg, and I offered. Regrettably, that amendment failed on a tie vote. The Senate also began to debate an amendment by Chairman Conrad that would have extended some of the budget process for a more limited time. That amendment fell on a point of order. We are left, therefore, with a budget process that expires on September 30 of this year, less than 3\1/2\ months from now. Unless we act before then, the process will fail to constrain the government from deficit spending. And unless we act, the process will fail to protect the Social Security trust funds from being used to fund other government spending. Thus, Senator Conrad and I have come to the floor with a compromise proposal. Our amendment would extend exactly the same budget processes that Chairman Conrad's amendment would have, in exactly the same way. So the Senate will have no reason to dispute the way in which our amendment enforces budget discipline. But our amendment would also do something that Chairman Conrd's amendment would not have done. The amendment that Chairman Conrad offered on the supplemental appropriations bill had no caps on appropriated spending. Now we understand that Chairman Conrad and Senator Domenici intended to offer an amendment that would create enforcement for 1 year, this year, pretty much as a budget resolution would, but were unable to offer that amendment. But just 1 year of constraint on appropriated spending means absolutely no restraint on next year's budget resolution. At a minimum, we ought to put some constraint on how much spending we can put into next year's budget. If we do not put any constraint on the coming year's budget resolution, then we are not doing what we need to do to rein in the deficit and protect Social Security. And that's what our amendment would do. We would do everything that the Conrad amendment would do, exactly as the Conrad amendment would do it. But then our amendment would have 2 years of caps on appropriations, instead of just 1. We would require next year's budget resolution to live by a cap, as well. Now, for the first year, the numbers we use for our amendment are, as best as we can determine, what Chairman Conrad and Senator Domenici would have offered had they had the chance on the supplemental appropriations bill. We have simply followed the numbers that Senator Domenici distributed at that time. They are pretty much the same as the budget resolution numbers that we proposed in our earlier amendment, except that an adjustment is made to smooth out fluctuations in the highway trust fund. For the second year, we continue to use the numbers in the budget resolution reported by the Budget Committee on March 22. We have sought to employ the most neutral numbers that we can find. We have sought, therefore, to focus the debate on a single issue: Shall we have budget constraint for next year's budget resolution, or will we have no constraint at all? In March, the Congressional Budget Office projected that, with the President's budget levels, we are headed for a deficit of $121 billion in 2003 and a deficit just a few billion dollars short of $300 billion, if you don't count the Social Security surplus. And for this fiscal year, 2002, just last Friday, CBO issued a report saying: The total budget deficit for the first eight months of fiscal year 2002 was $149 billion . . . a sharp reversal from the $137 billion surplus recorded for the same period in 2001. So far this year, receipts are more than $80 billion below CBO's baseline projections, and CBO now expects the deficit for the entire fiscal year to end up well above $100 billion. And in Saturday's papers, CBO Director Dan Crippen was quoted saying that the unified budget deficit for 2002 could reach $150 billion. Once again, the government is using the Social Security surplus to fund other parts of government. That is something that many Senators from both parties fought for most all of the 1990s. It is something that we should continue to fight. This is a critical test for us. Are we serious about protecting Social Security, even in these difficult times? Especially after 9-11, the American people have a right to know that we are being especially careful with their dollars, that we can keep track of them, and that we are truly putting our priorities straight--with the war on terrorism at the top, but also guaranteeing the safety and security of Social Security. This is a modest budget process proposal, Mr. President. It is the least that we should do, and I urge my colleagues to join us in this effort. Let us extend the budget process for at least 2 years, and do what we can to protect Social Security. Mr. President, I also ask unanimous consent that the Senator from Washington, Ms. Cantwell, be added as a sponsor of the pending first- and second-degree amendments.

Mr. FEINGOLD. Mr. President, I yield the floor and suggest the absence of a quorum.

Mr. FEINGOLD. I thank the Chair. Mr. President, first, I say to the Senator from Nevada, I certainly think limited debate time will be acceptable. This is similar to the approach we tried to bring up on similar proposals on other bills. Members of the Senate understand this. The reason I rise at this point is to thank the Senator from North Dakota for his kind words, but also in many ways the Senator from North Dakota is sort of my mentor on these issues of the budget. Before I came here, I watched him focus on balancing the budget in a sincere way, taking political risk with relation to it. In the 10 years I have been here, many of them on the Budget Committee, time and again I have seen his proposals, his genuine attempts to either get us to a balanced budget as fast as possible or to figure out some way to make absolutely sure that we do not borrow from Social Security, which is something he and I both abhor. That is exactly what this is about. Yes, it sometimes sounds like technical budget talk, but it really is whether or not there is going to be an open bank account for Congress to take money out of Social Security--that is what it is about--without any rules, without any caps, without any discipline. That is what we are discussing. Sure, it comes out in the form of a lot of documents and a lot of papers and a lot of numbers, but what it is about is whether or not Members of this body are truly committed to stopping the practice of borrowing from Social Security and getting us back to a balanced budget as fast as possible. The Senator from North Dakota and I spent just about every day for many years trying to get us to the point where we were not borrowing from Social Security. A lot of people thought that could not happen, but we made it, working together with our colleagues, often both parties and under President Clinton. We made it. We were there for a while. The only way we can get there again is by finding a way to extend these budget caps and keep these budget rules in place because, without them, I really do fear many of the alternatives Senator Conrad mentioned will come to the fore, and the result will be a huge hole. There is already a significant hole being developed, a significant deficit that actually reminds me of the kinds of numbers I first saw when I came here. I ran on this issue of whether we can balance the budget, and the deficits we are starting to look at for a 1-year period are beginning to resemble the deficits I was complaining about when I first had the chance to run for the Senate and challenge what was going on in Washington in the 1980s. I thank the Senator. I am pleased we could come together in this amendment. It is not everything I would want ideally, but it is a significant step in the right direction, and it will provide some discipline, not only in this fiscal year that is coming up but in the following fiscal year. I thank him very much for his cosponsorship of this amendment.

Mr. FEINGOLD

Mr. FEINGOLD. Madam President, I rise today to oppose a provision in H.R. 3275, the Terrorist Bombings Convention Implementation Act, and the proposed Leahy-Hatch amendment to S. 1770, the Senate version of this implementing legislation, which would authorize the use of the death penalty by the Federal Government. This bill seeks to implement into Federal law the obligations of the United States under the International Convention for the Suppression of Terrorist Bombings and the International Convention for the Suppression of the Financing of Terrorism. The U.S. signed these conventions, which were later ratified by the Senate on December 5, 2001. These two conventions are vital to our efforts to fight terrorism. These conventions will fill an important gap in international law by expanding the legal framework for international cooperation in the investigation, prosecution, and extradition of persons who engage in bombings and financially support terrorist organizations. Both conventions require participating countries to pass specific criminal laws to implement those nations' obligations under the conventions. But while these conventions do not require a death penalty, the House bill and the proposed amendment to the Senate bill would authorize the use of the death penalty by the United States. Not only do I oppose the expansion of the Federal death penalty at a time when Americans are questioning the fairness of the administration of this punishment, but I also fear that expanding the Federal death penalty through this implementing legislation will undermine our fight against terrorism. I fear that the inclusion of a death penalty could actually thwart the purpose of these conventions. Instead of encouraging international cooperation in the fight against terrorism, this implementing legislation threatens to hamper international cooperation to prevent and punish terrorist bombings and financing of terrorist organizations. Many nations, including our closest allies in the fight against terrorism, may refuse to extradite suspects to nations where those suspects will face the death penalty. Already our allies like France and Germany have expressed their concerns about extraditing individuals or sharing information concerning al-Qaeda suspects out of concern that the United States will seek the death penalty against suspected terrorists. As this experience obviously shows, it doesn't serve the cause of justice, peace, or freedom to include a death penalty provision in this important bill. Moreover, this is not the time to expand the Federal death penalty. Americans are increasingly recognizing that the current death penalty system is broken, and risks executing the innocent or applying the ultimate punishment disproportionately to those who may live in the ``wrong'' part of the country, have the ``wrong'' color skin, or just not have the money to pay for a ``dream team'' defense. These problems plague the integrity of the justice system at the state and federal levels. A report released by the Justice Department in September 2000 showed troubling racial and geographic disparities in the administration of the federal death penalty. The color of a defendant's skin or the federal district in which the prosecution takes place can affect whether a defendant lives or dies in the federal system. Former Attorney General Janet Reno ordered a further analysis of why these disparities exist. And Attorney General Ashcroft has agreed to continue this study. We have not yet seen the results of this study, nor have we had the opportunity to review and understand what the results might mean for the fairness and integrity of our federal justice system. While this important study is underway, Congress should not create even more death-eligible crimes. As Governor George Ryan of Illinois said at a hearing I held on June 12th in the Senate Judiciary Subcommittee on the Constitution on the report of the Illinois Governor's Commission on Capital Punishment, ``especially after September 11, . . . the United States must be a model for the rest of the world. And that means our justice system should be the glowing example for the pursuit of truth and justice. It must be fair and compassionate.'' There is no question that we should prosecute and punish severely those responsible for the horrific attacks on our nation on September 11th or those who may plan or perpetrate acts of terror in the future. But I am very concerned that the bill's provision for the death penalty against suspected terrorists could undermine the purpose of the conventions and our ability to seek vital information and cooperation from other nations. I fear that the death penalty provision will weaken, not strengthen, our hand in pursuing terrorists, especially our global efforts to bring alleged terrorists to justice and to prevent future acts of terror. For these reasons, I cannot in good conscience support H.R. 3275, the proposed Leahy substitute amendment to H.R. 3275, the proposed Leahy- Hatch amendment to S. 1770, or S. 1770, if the amendment should be adopted.

Mr. FEINGOLD

Mr. FEINGOLD. Yes.

Mr. FEINGOLD. I am not certain they missed that.

Mr. FEINGOLD. I am still checking into all the different aspects.

Mr. FEINGOLD. I am sure they will get to it if they haven't. They are able to achieve this shakedown, it is said, by establishing exclusive agreements with independent promoters that collect a fee in exchange for access to the airwaves. I am very troubled by these allegations. If true, they mean that artists that can't, or don't, pay these independent promoters will not be able to get access to the airwaves. Artists should not be required to pay for access to the airwaves. I am continuing to investigate these allegations of a new shakedown, but if they are true, this practice should be prohibited. Finally, I am deeply disturbed about concerns that have been voiced by individuals and local businesses--promoters, radio station owners, and artists--that have been forced out of the business or have been put on an unfair playing field as a result of the concentration of market power caused by the deregulation of the 1996 act. These are local promoters and businesses who have succeeded through economic downturns, recessions and many other challenging times. But when placed on an unfair playing field, they are being pushed out of the market. Radio is a public medium and we must ensure that it serves the public good. The concentration of ownership, both in radio and the other facets of the concert industry, has caused great harm to people and businesses that have been involved and concerned about the radio and concert industry for generations. It also harms the flow of creativity and ideas that artists seek to contribute to our society. This concentration does a disservice to our society at every level of the industry, and it must be addressed. This is about the very freedom of radio as a medium. Radio is one of the most important media we have for exchanging ideas and expressing our creativity. But that free exchange of ideas often isn't free anymore--if you want to get played, often it's going to cost you. And if you can't afford it, then you might not get heard at all. Being able to hear a variety of voices is fundamental to a free society. Concentration in the radio industry is diminishing the number of voices that get heard. And that risks diminishing our freedom. It isn't just about who is talented, and who deserves to be played. It is about a shakedown, and that is just unacceptable for the industry, for the artist, and for all of us who listen. While we took a step forward in reforming the campaign finance system earlier this year, we must fix the problems that the soft money loophole caused--including the gaping flaws of the Telecommunications Act that have hurt competition in the radio and concert industries. In the coming weeks, I will be introducing legislation to address the concerns about concentration and anticompetitive practices that have resulted from the Telecommunications Act. I hope my colleagues will join me in this effort. Mr. President, I just want to alert my colleagues to this trend, and we will introduce legislation to deal with it. I am convinced the complaints I have heard from such a wide variety of Wisconsinites are the same concerns being raised in all the States in this country, and I look forward to submitting a proposal and a bill to my colleagues. I yield the floor. Exhibit No. 1 Joint Statement on Current Issues in Radio, May 24, 2002 We are a diverse coalition representing performing artist groups, labor, record labels, merchandisers, songwriters, community broadcasters, consumers and citizens advocates. We urge the government to revise the payola laws to cover independent promotion to radio, to investigate the impact of radio consolidation on the music community and citizens and to work to protect non-commercial space on both the terrestrial radio bandwidth and the emerging webcasting models. Radio is a public asset, not private property. Since 1934, the federal government, through the Federal Communications Commission, has overseen the regulation and protection of this public asset to create a communications medium that serves the public interest. Unlike other businesses, radio stations have acquired their distribution mechanism--the airwaves--without any expenditure of capital. The public owns the airwaves. Owners of broadcast stations were given access to the broadcast spectrum by the government for free. The quid pro quo for free use of the public bandwidth requires that broadcast stations serve the public interest in their local communities. However, it has become clear that both recording artists and citizens are negatively impacted by legislation, regulatory interpretations and by a number of standardized industry practices that fail to serve the public interest. We call on the Federal Communications Commission (FCC) to undertake a comprehensive review of the following aspects of the radio industry that are anti-artist, anti-competition and anti-consumer. Further, we call on Congress to be vigilant in their oversight of the FCC to ensure the public interest is being upheld in regards to radio. Specifically: 1. We request that payments made to radio stations which are designed to influence playlists (other than legitimate and reasonable promotional expenses) be prohibited, unless such payments are announced over the air, even when such intent is subtle and disguised. This includes payments made through independent radio promoters. 2. We request an investigation of the impact of recent unprecedented increases in radio ownership consolidation on citizens and the music community. 3. We request an examination of the way vertical integration of ownership in broadcasting, concert promotion companies and venues decreases fair market competition for artists, clubs and promotion companies. 4. We request that policies that protect non-commercial space in the radio bandwidth and in the emerging webcasting models be enacted, securing the benefits of programming diversity for the music community and citizens. background Pay for Play and Independent Radio Promotion Payola--the practice of paying money to people in exchange for playing a particular piece of music--has a long history in the music industry. The practice didn't garner much public attention until the late 1950s and 1960s when rock and roll disc jockeys became powerful gatekeepers who determined what music the public heard. Federal laws were passed starting in the 1960s that forbid the direct payment or compensation of disc jockeys or other radio staff in exchange for the playing of certain records unless such payments were announced over the air. The various laws and hearings from the 1960s-1970s muted the prominence of payola for a while. However, payola-like practices eventually resurfaced, but in a more indirect form. Standardized business practices now employed by many broadcasters and independent radio promoters result in what we consider a de facto form of payola. Often, in an effort to stay within the law, the payment is characterized as, for example, payment to receive first notice of the station's playlist ``adds.'' The new payola-like practices take two primary forms. Radio consolidation has created the first type. Radio station group owners establish exclusive arrangements with ``independent promoters,'' who then guarantee a fixed annual or monthly sum of money to the radio station group or individual station. In exchange for this payment, the radio station group agrees to give the independent promoter first notice of new songs added to its playlists each week. Stations in the group also tend to play mostly records that have been suggested by the independent promoter. As a result of the standardization of this practice, record companies and artists generally must pay the radio stations' independent promoters if they want to be considered for airplay on those stations. The second payola-like practice occurs after the music labels hire an ``independent radio promoter'' to legitimately promote their records to specific stations for a fee. Reportedly, certain indie promoters use the labels' money to pay the stations for playing songs on the air. These practices result in ``bottom line'' programming decisions where questions of artistic merit and community responsiveness take a back seat to the desire of broadcasters to gain additional revenue. As a result, many new and independent artists, as well as many established artists, are denied valuable radio airplay they would receive if programming decisions were more objective. Furthermore, whatever form the pay-for-play takes, these ``promotion'' costs are often shared by the artists and adversely impact the ability of recording artists to succeed financially. To protect the public interest, we request the payola prohibition be revised by the FCC so that it cannot be circumvented by any entity via the use of independent promoters. If the music played on the radio has less to do with the quality of the song than the economics of the business arrangement, how does this serve the needs of citizens? Also, when payments are not announced, isn't the public misled into thinking that the station chooses which songs to broadcast based on merit? Impact of Widespread Industry Consolidation The federal government must also examine the impact of loosened ownership caps on the listening public. Until 1996, the Federal Communications Commission regulated ownership of broadcast stations so any company could own no more than two radio stations in any one market and no more than 40 nationwide. When Congress passed the Telecommunications Act of 1996, the restrictions government ownership of radio stations evaporated. Now, radio groups own numerous stations around the country and exercise unreasonable control over the airwaves. For example, in 1996, there were 5133 owners of radio stations. Today, for the Contemporary Hit Radio/Top 40 formats, only four radio station groups--Chancellor, Clear Channel, Infinity and Capstar--control access to 63 percent of the format's 41 million listeners nationwide. For the country format, the same four groups control access to 56 percent of the format's 28 million listeners. This consolidation has led to a new dynamic in the music industry. Radio station groups have centralized their decision-making about playlists and which new songs to add to the playlist. These centralized playlists have reduced the local flavor and limited the diversity of music played on radio. Due to their sheer market power, radio station groups now have the ability to make or break a hit song. With the increased leverage resulting from ownership consolidation, at least one group owner is considering charging labels for merely identifying the name of the artist and song played. The CEO of Clear Channel told the Los Angeles Times that it might sell song identification as a form of advertising. This miserly practice would harm the music community and citizens, as it would make it difficult for radio listeners to identify new artists and purchase music. Once again, this practice would impact the ability of new and independent artists to succeed. We request that the FCC investigate consolidation of radio ownership focusing on the public interest which radio stations are supposed to serve. This investigation should look at the difficulties small independent broadcasters face when going up against large and powerful radio station groups in a specific market. It should study the role that national playlist decisions have had on the skyrocketing cost of radio promotion. It should also take into account the impact of reduced staffing levels on members of local stations and the reduction of classical, jazz, bluegrass and other formats from the airwaves. Vertical Integration of Radio Owners Many radio groups are also vertically integrated companies increasing their already substantial leverage and control. For example, Clear Channel, a company that owns over 1200 radio stations, also owns tens of thousands of billboards, and various promotion companies and venues. In 1999 Clear Channel purchased SFX Entertainment, the nation's most powerful concert promoter. This gave Clear Channel control of the concert promotion industry in most of the key regions of the US virtually overnight. Clear Channel therefore has a direct economic interest in promoting its own concerts and tours on its numerous radio stations over those of the competition. It also has an interest in limiting the promotional support of bands and artists who are performing for other companies, at other venues or who are sponsored by other stations. Some of the remaining independent concert promoters have alleged that Clear Channel is engaging in anti-competitive behavior by using this leverage to force smaller companies out of business. In particular, the mid-size promoter NIPP in Denver brought suit against Clear Channel in 2001, alleging that Clear Channel--which owns all three rock stations in the Denver area--was not running the ads that NIPP paid for on its stations to promote last year's NIPP-promoted Warped Tour. There have been other allegations from bands and performers--mostly off-the-record for fear of retaliation-- who have stated that radio station groups have pressured them into playing shows for free in exchange for airplay, or who have had their songs removed from playlists for playing non- exclusive venues. We would like to see the FCC investigate whether an artist's choice to play or not to play in Clear Channel venues or to use or not to use Clear Channel's promotion company impacts the artist's positions on or removal from Clear Channel playlists. Community Radio Rampant consolidation of commercial radio and increased budgetary pressures felt by non-commercial stations have led to a reduction in radio play for musical genres like classical, jazz, opera and bluegrass. Congress needs to reevaluate the current status of non-commercial radio, including exploring new strategies for sustaining existing community radio stations and moving forward with full implementation of community-based Low Power FM radio. After an intense lobbying campaign by the National Association of Broadcasters and NPR, the FCC's Low Power FM plan was scaled back significantly via an Appropriations rider in 2000. The FCC is currently following Congress' request for additional testing of the impact of these tiny stations on existing broadcasters. Once the FCC report is submitted to Congress, Congress must move forward by passing legislation to authorize the FCC to license these stations in urban areas. If consolidation in the radio environment has stifled competition and reduced diversity of programming, low power radio can begin to address the lack of community-based programming. conclusion We are deeply concerned about payola and payola-like practices, as well as the problems caused by radio station ownership consolidation, and the vertical iintegration of station ownership with venue ownership and concert promoters. New rules must be written by the FCC to prohibit payments to radio stations from ``independent promoters'' unless such payments are announced. The FCC must seriously evaluate whether a radio station is even satisfying the current license requirement that sponsorship identification or disclosure must accompany any material that is broadcast in exchange for money, service, or anything else of value paid to a station, either directly or indirectly. The FCC should also consider whether radio stations are serving the public interest by contributing to localism, and independence in broadcasting. Finally, Congress must be vigilant in ensuring that the FCC is upholding the public interest in all of these matters. Respectfully submitted by the following organizations: American Federation of Musicians (AFM), American Federation of Television and Radio Artists (AFTRA), Association for Independent Music (AFIM), Future of Music Coalition (FMC), Just Plain Folks, Nashville Songwriters Association International (NSAI), National Association of Recording Merchandisers (NARM), National Federation of Community Broadcasters (NFCB), Recording Academy, Recording Industry Association of America (RIAA).