Dianne Feinstein

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Mr. President, I rise today to introduce legislation on campaign spending reform. I recognize that this is not the first bill introduced in Congress on this issue. In fact, at last count, there were 85 bills introduced in either the House or the Senate on campaign finance reform--17 of them in the Senate alone. Frankly, I would be quite satisfied if the bill I am introducing today was tabled in favor of a floor vote on the McCain-Feingold bill, of which I am a cosponsor. Last week, all 45 Democrats in the Senate pledged to vote for McCain- Feingold if given the opportunity. Combined with the three Republican cosponsors of the bill, this legislation needs only three more votes for passage. Surely there are three more Republicans who will support this bill. But we are not there yet, and I believe strongly that action must be taken on this subject now. Today. This Congress. This session. This Congress has spent $10 million in taxpayer funds investigating wrongdoing in the last election cycle. Eighty-four Members of this Congress have called for special prosecutors. We've spent 6 months in public hearings decrying how bad the system is, how bad soft money is, and how badly we need reform. There is nothing to hide behind if this Congress does not act on reform. I do not believe Members of this body can or should be able to take a pass on reform based on disagreements with McCain-Feingold, or based on an all-or-nothing attitude. Therefore, I offer my legislation as a bill that contains the common denominators--the basic elements--of reform that many of us profess to agree on. Let me state clearly; I am a cosponsor of McCain-Feingold and will vote for McCain-Feingold if it comes to the floor for approval, as I believe it should. My legislation is an alternative, focussed on what I, and what most of my colleagues, have said are the most pressing areas in need of reform: the elimination of soft money, greater disclosure on contributions, and regulation of dollars now unregulated. The cornerstone of any campaign reform bill must address the issue of soft money. After all the charges and disclosures about the abuse of soft money in federal campaigns, we would be hard-pressed to explain to the public why we did not take action at least on this issue. However, just banning soft money--for which there appears to be sufficient support in both Houses--cannot be our only action. A simple ban on soft money will force the shifting of these dollars into unregulated independent expenditure campaigns where huge amounts of anonymous money is used to influence campaigns and--most commonly--to attack candidates. Between $135 and $150 million was spent on so-called issue ads in 1996--about 35 percent of the $400 million spent on all campaign advertising in 1996, according to a new study released yesterday by the Annenberg Center at the University of Pennsylvania. The study--the most comprehensive on this issue to date--showed that, compared with other forms of political advertising and coverage, the content of issue ads were the highest in ``pure attack.'' To this end, I have prepared this small package of measures--many of which appear in other bills--which, taken together, is a step on the road to spending reform, and would be a solid step forward in the battle to decrease the flood of unregulated money in campaigns. Specifically, this bill would: Ban soft money to national parties. During the last election, both parties spent a combined total of over $270 million in soft money. Democrats spent $122 million and Republicans spent almost $150 million. Over the first 6 months of this year, both parties have raised $34 million in soft money, with Republicans out-pacing Democrats $23 to $11 million. Change the definition of ``express advocacy'' to include any communication that uses a candidate's name or picture within 60 days of an election as ``express advocacy''. Only ``hard'' dollars--limited in amount and fully disclosed--could be used to fund independent campaigns of a candidate's name or image is used in express advocacy for or against a candidate. Change the personal contribution limit from $1,000 per election to $2,000 per election and index those contribution limits for inflation in the future. The $1,000 per election limits have not been changed since 1974. That was 23 years ago and, as every candidate knows, the cost of printing postage and buying media has more than quadrupled in that time. Increase the disclosure requirements so that any group or individual spending more than $10,000 up to 20 days prior to an election would have to report that to the FEC within 48 hours. This threshold drops to $1,000 within 20 days of an election. Implement a policy whereby if a person is not eligible to vote in U.S. elections, he or she would not be permitted to contribute to candidates or parties. Lower the threshold for reporting contributions to candidates from $200 to $50. This increases disclosure. Allow the FEC to seek an injunction in U.S. District Court if it has evidence that a violation of campaign laws is about to occur. Permit the FEC to refer matters to the Attorney General for prosecution if any significant evidence of criminal wrongdoing exists. I believe a bill containing these elements is doable this year and I offer it as a package for the consideration of this body. In closing, it is my sincere hope we will move to enact meaningful campaign finance reform this year. If we can't act now, after all that has been said and done this year, I'm afraid we never will. The American people deserve more than lip service on campaign reform. I implore the majority leader to bring the McCain-Feingold bill to the floor and allow us to debate it, amend it, and vote on it. If we can't agree on the McCain-Feingold bill, then let us vote on an alternative such as mine. Either way, let us have at it. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Mr. President, the Senate today is considering the Ashcroft amendment to eliminate the National Endowment for the Arts. I oppose the amendment. There are also several amendments that seek to restrict, censor, or block grant the NEA. Mr. President, in my view, the arts play an enormously important role in shaping our national culture and our local communities. The question is what is the best way for the Federal Government to fund the arts, if at all. nea is a success Since the NEA's creation in 1966, there has been an explosion of community arts in local communities throughout the country. There are 8 times more nonprofit theaters, 7 times more dance companies, and 4 times more orchestras and opera companies. The impact of the National Endowment is far reaching. Through sponsorship of the arts, the NEA can stimulate expressions of our national character in many localities and guide our young people and pump hundreds of millions of dollars into local economies. Mr. President, if it were not for the strong leadership of the NEA, many rural areas and impoverished communities would be denied the opportunity to experience artistic presentations, performances, and education. academic benefits Exposure to the arts has academic benefits. According to College Entrance Examination Board, students with more than four years of course work in the arts score 59 points higher on the verbal and 44 points higher on the math portions of the SAT. Children with a background in piano have also scored better in math. economic benefits The National Endowment for the Arts contributes to our national economy. For every $1 spent by the NEA, $34 are returned to the U.S. Treasury. Because of the Endowment's support of the arts, the arts industry has boomed. Every $1 spent by the NEA attracts $12 to the arts from other sources. The nonprofit are industry now generates $37 billion annually in economic activity. The nonprofit arts industry also employs nearly 1.3 million Americans and represents nearly one percent of the entire U.S. work force. block grants Some of my colleagues believe that all of the NEA's funds should go to the states in the form of block grants. Under current law, states have direct control over 35% of NEA funds in the form of block grants and state arts agencies believe this is the appropriate federal-state balance. losses under block grants If further block granting is successful, states will lose hundreds of national grants that benefit all Americans. For example, according to the NEA, under block granting shows on public television like Great Performances, Dance in America, American Playhouse, and American Masters will be lost. 98% of American homes have access to public television--a great example of one grant having a huge national impact. Programs of this large scale are best run, are most efficiently run, on a national level. Most states cannot take on a project of this magnitude. Another national program that the NEA says will be eliminated under block granting is the Mayor's Institute on City Design, in which over 300 of the nation's mayors have had the opportunity to meet with planners and architects to discuss urban design issues. This single grant benefited over 300 American communities. privatization of nea Other members of this body would like to privatize the National Endowment for the Arts. I believe this would be a grave mistake. According to Independent Sector's 1996 Giving and Volunteering survey, households giving to the arts, culture, and humanities has decreased by 29 percent since 1987. ``Giving USA'' found that total donations to the arts and humanities declined by $270 million between 1992 and 1995 and private donations to the arts and humanities decreased by 7.7 percent in 1992 and to 6.9 in 1995. These statistics do not bode well for arts without the support of a federal endowment. controversial nea grants I have heard some Senators criticize the questionable content of past NEA grants. I agree there have been mistakes. Yet, throughout the NEA's 30-year history, ``objectionable'' grants have amounted to only 45 out of more than 112,000 grants. This figure translates to approximately four-one-hundredths of 1 percent of all grants. Few other federal agencies can claim the same small proportion of error or high rate of success. new reforms NEA grantees must now adhere to strict guidelines to ensure quality content: all grants to individual artists have been eliminated, all grants to organizations must be for grants specifically described in the application, all grantees must file interim and final project reports, and all grantees must seek written permission in advance to change grant activities proposed in the organizational application. In conclusion, Mr. President, I remind my colleagues that most great civilizations are remembered primarily for their arts. Already, the United States spends nearly fifty times less on the arts than any of its major allies. The National Endowment for the Arts represents a national commitment to our nation's culture, history, and people. If the NEA were to be privatized, block granted, or eliminated, not only would we suffer a great economic loss, but more importantly Americans, particularly those living in rural and low-income areas, would suffer a great loss. The NEA benefits our young people, our communities, and our economy. We cannot deny our citizens this national treasure.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. I thank the distinguished ranking member. Mr. President, while I am pleased that we are voting today on three judicial nominees and I am supporting them, I am concerned about those whom we are not voting upon--in particular two fine nominees from California. I am also concerned about what appears to me to be a plan to force the splitting of the U.S. Court of Appeals for the Ninth Circuit by crippling its ability to do its work. Ten of the twenty-eight judgeships on that court are now vacant--36 percent of the bench. I will ask unanimous consent that a table showing the status of each vacancy within the ninth circuit be place in the Record following my remarks. I believe that proponents of the ninth circuit split wish to keep these seats vacant as long as possible, so that the vacant judgeships can then be transferred to the new twelfth circuit, and filled by judges who they hope will be more in line with their own political philosophy. Unfortunately, this plan is substantially impairing the ability of the ninth circuit to do its job, and impeding justice for the millions of Americans who live within the ninth circuit --creating what the Honorable Proctor Hug, chief justice of the ninth circuit, has called a vacancy crisis. The time has come for the Senate to end this death by attrition, and act upon these nominations, so that the ninth circuit can get on with its work. These votes we are taking today will clear out all the judicial nominees who remain on the executive calendar, except for three, two of whom, as I have mentioned, are from California These two nominees, Margaret Morrow and Anthony Ishii, have had their nominations pending longer, both in the Senate and on the floor of the Senate, than have two of the three nominees upon whom we are voting today. Margaret Morrow was first nominated almost a year and a half ago, on March 18, 1996. She was favorably reported by the Judiciary Committee on June 27, 1996, but the Senate failed to take further action upon her nomination before we adjourned. She was nominated again in the beginning of this year, and favorably reported by the committee again on June 12, 1997. Anthony Ishii was nominated on February 12, 1997, and has been on the floor since July 10. In contrast, Christopher Droney and Janet Hall were nominated on June 5, 1997, and have only been on the floor since July 31. So while I am happy that we are acting upon their nominations, I hope that we will soon act upon the older nominations of Margaret Morrow and Anthony Ishii. Let's bring their nominations up, debate them if necessary, and vote them up or down. I urge the distinguished majority leader to do this, I thank the chair, and I yield the floor. Mr. President, I ask unanimous consent a table regarding the ninth circuit vacancies be printed in the Record.

Mr. FEINSTEIN

Mr. FEINSTEIN. I move to lay that motion on the table. The motion to lay on the table was agreed to. Amendment No. 1078, As Amended

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Madam President, if I may, I would like to continue along the lines of some of my colleagues' comments with some of my own, informal as they may be, about what happened this morning. I find myself very much thinking along the lines of the Senators from New York, Connecticut and New Jersey. I watched the CNN coverage from Jerusalem this morning, and my heart very much went into my throat. I wondered how much can the people of this small nation endure. I looked at the faces on the streets, and I saw a kind of brokenness, a spirit diminished, a hurt that was turning rapidly to anger. I have been one on the Foreign Relations Committee who has been a supporter of the Middle East Peace Facilitation Act. That act expired prior to our recess. It was not renewed. My understanding is that as a result the Palestinian office in this area has closed, and I believe it should remain closed, and that the aid specified through the Middle East Peace Facilitation Act, which we call MEPFA, has ceased. I believe that aid should cease. I believe that the Middle East Peace Facilitation Act at this point in time should not be renewed and, as a member of the Foreign Relations Committee, it is going to take a great deal to convince me to go in any other direction. The last terrorist attack before this was July 30. Since then, there has been an aborted attack. Today, we saw three suicide bombers go into a busy pedestrian mall and blow themselves up in a kind of fanaticism that certainly is not understood in Western countries or really any peace-loving country. It is not the act of peace-loving people to blow themselves up and blow up anyone that happens to be around them. I submit that the only reason these bombs are not blowing up inside rooms, businesses, and convention halls--and causing even more casualties--is that in Israeli, everyone is searched when they enter public buildings. This is a terrible way for people to have to live. At some point it almost begins to approach the atrocity of a concentration camp if people must live this way. My own view is that it takes two parties to pursue peace, and both parties must want peace. I had thought up to this point that Yasser Arafat wants peace. I must tell this body honestly, I no longer believe that to be the case. I watched his kiss with a Hamas leader, and I know that when public leaders engage in these kinds of symbolic gestures, it sets forth signals, signals to every Hamas terrorist everywhere, that their actions are, to some extent, condoned by the chairman of the Palestinian Authority, the head of that authority. That is a terrible signal to send if you are going to be seriously engaged in a peace process. So I have come to believe that that authority at this stage does not want peace. I have come to believe it when I read that members of the police department were actually engaged in complicity with terrorists to allow a terrorist attack to take place. I believe the following: First, that if there is ever a time for the Arab world to come forward and take a united and strong position against Hamas and Hezbollah and any other organization that would carry out these acts, it is now. If there ever was a time for the Arab world to begin to press for the arrest, for the destruction of these terrorist organizations, it is now. Outside of concerted action by the Arab world, I don't see how a peace process can go ahead with any progress whatsoever. Second, I believe we should not renew the Middle East Peace Facilitation Act. I believe that all funding should cease at this point. And I must finally say that I personally have very mixed feelings about Secretary Albright's trip to the Middle East. Yes, I believe we should resist terrorism. I am not sure that going to the Middle East at this point in time sends the signal that we do, indeed, resist terrorism. It seems to me that if both parties, Israel and the Palestinians, want to discuss peace and the United States is going to carry out our role as an honest broker, this peace can be brokered elsewhere than on Israeli soil at this point in time. When three people move forward to kill themselves and kill others, I only can believe that other attacks are going to follow. If I am any judge at all of the faces, the Israeli faces I saw on television this morning, I would have to say that peace is having a price that free people have a great deal of difficulty in paying, because it means your child can't go to school, you can't shop, you can't walk down a street. You become a hostage, in another sense. So I make these comments with very deep concern as one who has tried to work on resolutions passed by this body so that they weren't inflammatory to the peace process, so that Jerusalem, as an issue, could be handled in a way that was not inflammatory, so that the Middle East Peace Facilitation Act could go ahead. But as one Member of this Senate, I am now at the point where I believe that without a major commitment from the Arab world, from Mr. Arafat and from his government, peace is at the weakest point that I have ever seen since the peace process has begun. I thank the Chair. I yield the floor. I thank the Senator from New York for his comments. Mr. D'AMATO addressed the Chair.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. I move to lay that motion on the table. The motion to lay on the table was agreed to.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. Mr. President, I am pleased to join with the distinguished chairman and ranking member of the Foreign Relations Committee, and many others, as an original cosponsor of Senate Concurrent Resolution 46. Yesterday two suicide terrorist bombers blew themselves up in the Mahane Yehuda open-air marketplace in the center of Jerusalem. These bombs were clearly timed to do the maximum possible damage. They exploded seconds apart at about 1 p.m. local time, at the height of the lunchtime shopping hour. Initial reports indicate that at least 18 people were killed and over 100 were injured. This was a despicable, bloodthirsty act, which all of us stand and condemn in one voice. It is not yet known exactly who perpetrated the bombing, but it bears great similarity to attacks conducted in the past by the Palestinian extremist groups, Hamas and Islamic Jihad. Whoever bears guilt for this terrible crime is beneath contempt. We join Prime Minister Netanyahu, President Weizman, and the Israeli people in mourning those who were murdered yesterday, and we offer our deepest condolences to their families. To the wounded, we offer our prayers and hopes for their full recovery. Sadly, Israelis have become all too familiar with having their daily routines shattered by the sudden bloodshed and carnage of bombings in seemingly ordinary places--on a bus, in a marketplace, in park or a cafe. On top of all the other tragic aspects of these bombings, the way Israelis are forced to live with the knowledge that their world could be blown apart at any instant is a peculiar kind of torture. President Clinton was exactly right when he said yesterday morning that this bomb was aimed not only at innocent Israeli civilians, but also at all those in the Middle East who genuinely desire peace. And I fear that this bombing, because of its timing and location, could be as damaging to prospects for peace as any that we have seen. The timing could hardly have been worse. The President's Special Middle East Coordinator, Dennis Ross, was about to travel to Israel to try to breathe new life into the Israeli-Palestinian peace talks, which have been suspended for many months, but which were just beginning to show signs of resuming. In fact, there is good reason to believe that this attack was timed specifically to disrupt Mr. Ross's trip and the impending resumption of the peace talks. Now it may be weeks or months before these talks can resume and be productive. For the extremists, the greatest danger is that the talks could make progress, and they are obviously willing to do anything to prevent it. This bombing also has ramifications for our work. On August 12, the Middle East Peace Facilitation Act will expire. This act provided the legislative framework for U.S. involvement in the peace process by giving the President the authority to provide assistance to the Palestinian Authority, allow the PLO to operate an office in Washington, and waive other restrictions on United States-Palestinian contacts, if he certifies that the Palestinian Authority is fulfilling its commitments. I had hoped that the House and Senate leadership would work with those of us who care deeply about this issue to pass a short-term extension of the Middle East Peace Facilitation Act, so that it does not expire while the Congress is in recess next month. There are many Members, myself included, who believe that the act needs to be reworked to establish a tougher standard of compliance, before it is extended for the long term. But a short-term extension of 60 or 90 days would give us the opportunity to negotiate a meaningful new version of the law, without this important legislation lapsing for a matter of weeks, or even months. Now, under these circumstances, I do not think it will be possible to pass to a short-term extension in the short time remaining before the August recess. I hope that we will be able to negotiate an appropriate replacement for the current Middle East Peace Facilitation Act shortly after the recess in September. The location of this bombing also makes it deeply resonant. The Mahane Yehuda marketplace is in the heart of downtown Jerusalem. It is a place where every Israeli has spent time, and many Jerusalemites visit or pass through it daily. It will be difficult to recover from an attack in such a central and symbolic place, and the Israeli Government will find it difficult to engage in peace talks while this memory is fresh. What will it take to recover from this bombing? Before anything else can take place, it will take action by the Palestinian Authority. First and foremost, the Palestinian Authority should resume security cooperation with the Israeli government to the full extent that they had cooperated before. At one time, in 1995 and part of 1996, Israeli an Palestinian security cooperation reached unprecedented levels. This cooperation reflected a mutual understanding in the shared stake both sides had in preventing acts of terrorism by extremists bent on destroying the peace process. That shared stake still exists today, but the Palestinian leadership must recognize it and act upon it. Even if the Palestinians are angered by some Israeli actions, that does not change the mutual interest they have in preventing terrorism. Because if anything will stop the peace process from achieving the aspirations of both Palestinians and Israelis, terrorism will. Second, the Palestinian Authority must reinvigorate its efforts to root out terrorist groups in the areas under its control. This effort has been spotty, at best, and Palestinian officials, including Chairman Arafat, have been rightly criticized for giving less than clear signals that terrorism will not be tolerated under any circumstances. This is not acceptable. An unequivocal red light against terrorism and the operations of terrorist groups--a no-tolerance policy--is the only thing that is acceptable. Chairman Arafat called Prime Minister Netanyahu shortly after the bombing to condemn the attack, which is the right thing for him to have done. But he must not and cannot stop there. He should condemn publicly in the strongest possible language--in English and Arabic--these bombings and all other acts of terrorism. He should instruct his security forces to dismantle the infrastructure of the terrorist groups, arresting those who are complicit in the conduct of terrorist attacks. He should use his bully pulpit to insist that Palestinian society rejects the elements who believe their aspirations--or martyrdom--can be attained by killing Israelis. If he fails to take these steps, there can be no peace process, and Palestinian aspirations will never be realized. Finally, when the security situation is more stabilized, both sides must resume peace talks with a view toward meeting only their own needs, but the needs of the other side as well. If these talks are seen in purely zero-sum terms, they will go nowhere. Both sides must make their demands--on Israel's further redeployments in the West Bank, and on final status issues like Jerusalem, settlements, refugees, and sovereignty--with the understanding that if the other side has no stake in the process, there will be no final status agreement that brings about a lasting peace. Clearly the peace process cannot coexist with terrorism. But despite yesterday's tragic and criminal bombing, the logic of this peace process, and the fundamental need for peace between Israelis and Palestinians has not changed. To give up on this effort would condemn future generations of Israelis to controlling a hostile population of over 2 million, to the detriment of Israel's long-term security and well-being. It would also bury Palestinian dreams of self- determination. To turn away now from the search for peace would be to reward the extremists for their acts of violence and terrorism. It would be a victory for the barbaric suicide bombers of Mahane Yehuda. It would say to them: ``You were right. You win. There cannot and shall not be peace between Israelis and Palestinians.'' Neither Israelis nor Palestinians--nor the United States--can afford for that to happen.

Mrs. FEINSTEIN

Mrs. FEINSTEIN. I would like to know how much time I have remaining, if I might.

Mrs. FEINSTEIN. Not at all.

Mrs. FEINSTEIN. I reserve the balance of my time.

Mrs. FEINSTEIN. I would be pleased to answer that question. I was first made aware of the problems that current property transfer laws poses by the sheriff of Riverside County in southern California. The sheriff's office has obtained, by short-term lease, a portion of March Air Reserve Base. The sheriff's office has been using this land for joint law enforcement and fire and rescue training. This legislation will allow the sheriff's office to apply directly to the General Services Administration, which will coordinate the application and approval process with the Department of Justice and FEMA to transfer the necessary property. Once again, I thank my colleagues for their support of this legislation. abusive and exploitative child labor

Mrs. FEINSTEIN. I thank the Chair. I yield the floor.

Mrs. FEINSTEIN. Mr. President, I would first like to thank the chairman and ranking member of the Commerce, Justice, State, and the Judiciary Appropriations Subcommittee for joining Senator Boxer and myself in this colloquy regarding our amendment to make technical corrections to title I, section 119 of the Commerce-State-Justice appropriations bill. This section, as amended, will allow the Department of Justice and the Federal Emergency Management Agency to transfer surplus real property to State and local governments for law enforcement, fire fighting, and rescue purposes.

Mrs. FEINSTEIN. Mr. President, I believe I have 9 minutes remaining on my time. I would like to yield 7 of them to the distinguished Senator from Delaware, the former chairman of the Judiciary Committee.

Mrs. FEINSTEIN. I ask for the yeas and nays.

Mrs. FEINSTEIN. I yield 5 minutes to the distinguished Senator from California, my colleague, Senator Boxer.

Mrs. FEINSTEIN. Mr. President, I yield 10 minutes of my time to the distinguished Senator from Nevada [Mr. Reid].

Mrs. FEINSTEIN. Mr. President, I thank the Senator from Delaware for his excellent comment. I agree with him 100 percent. This is the wrong way for the wrong reason. The reasons are regional. The reasons are, if we do not like the decision, we don't appoint the judges. One-third of the ninth circuit today is vacant. I repeat, one-third of the judgeships on the ninth circuit today are vacant. And I do not believe that there is a plan to appoint another judge to the ninth circuit until we bow to this. What we are bowing to is something that has never been heard, never been studied in the 4\1/2\ years that I have been on the Judiciary Committee of the Senate. Mr. President, I ask unanimous consent to include in the Record a July 14, 1997 statement of the Arizona bar in opposition to this split, a statement of the California bar in objection to this, a recent letter from the Governor of the State of California in objection to this, a July 22 letter from the chairman of the House Judiciary Committee in objection to this, a letter from the chief judge of the ninth circuit in objection to this, and the chief judge's letter on the unfair allocation of judges. I also have in my files letters objecting to the earlier proposals to split the circuit. These include letters of objection from the State Bar of Nevada, the State Bar of Montana, the State Bar of Hawaii, the Los Angeles County Bar, lawyers' representatives of the ninth circuit, and the Judicial Council.

Mrs. FEINSTEIN. I yield 5 minutes to the Senator from Washington [Mrs. Murray].

Mrs. FEINSTEIN. I yield the floor and reserve the balance of my time.

Mrs. FEINSTEIN. If I may finish my thought, the point has been made-- and the distinguished Senator from Alaska made this point very well-- that 28 out of 29 cases of this session were reversed by the United States Supreme Court. Bingo, it is a terrible circuit. Well, let me say that that is only 28 cases out of over 4,480 cases. It is the largest circuit. That is a very small percentage of the cases it successfully adjudicated. Let me just go back to Judge Hug's letter because I believe there is something important here. The caseload per judge in the ninth circuit would be 124 cases per judge higher than the twelfth circuit, or 52 percent greater, as I have said, than the twelfth. Then he raises this: The provision in the bill for coequal clerks in the twelfth Circuit is completely unworkable. How can it be efficiently administered in this way? Is the administration of the circuit to be done in two separate, coequal headquarters? Where would the circuit executive be located? These are all questions that need to be answered. This thing would go into effect on October 1. No question is answered. Then Judge Hug says in his letter: Consider the travel time and expense of the judges. Presumably, the judges from Alaska and Montana will need to travel half of the time to Phoenix, and the Arizona judges will need to travel half the time to Seattle. Presently, the circuit headquarters in San Francisco is equal distance, and the air routes convenient. This would not be the case in the new twelfth circuit. I don't know whether that's good or bad. My point is that it ought to be looked at. If we had been able to move ahead, and the House and the Senate agreed on the study, it would have been done by now. The study would have been done by now. It is a year and a half ago. It would have been done by now. Instead, we are faced with another arbitrary proposal for a split. We are rushing it through. It is an arbitrary split. No one has looked at costs, or at fair distribution of judges; no one has heard from a judge or from a bar association on this split; and no members of any of the bars of any of the States have indicated their support for this--none, zero, zilch, none. October 1, it goes into play. It does not make sense. How much time do I have remaining, Mr. President?

Mrs. FEINSTEIN. I thank the Chair. Mr. President, I yield 10 minutes of the time to the ranking member of the Judiciary Committee, Senator Leahy.

Mrs. FEINSTEIN. How much time is remaining on our side, Mr. President?

Mrs. FEINSTEIN. I will be happy to do that.

Mrs. FEINSTEIN. Mr. President, this bill, with no hearing, no due diligence, no consultation with the ninth circuit--any of its judges, attorneys, bar associations within the circuit--splits the circuit, and I would like to show you how it splits the circuit. It creates a twelfth circuit which would comprise Washington, Arizona, Alaska, Oregon, Hawaii, Idaho, and Montana. If you look at the map--separate and distinct, alone--separated from the rest, would be the State of Arizona. The proposal would leave in the ninth circuit only two States--the States of California and Nevada--along with the territories of Guam and the Marianas. Now, what is wrong with that? First of all, the way in which it is done, which I will address in detail. But second, it creates two unequal circuits. The ninth circuit and Nevada would have close to 35 million people and the twelfth circuit would have 16 million people. But look at the proposed distribution of the judges. It would distribute 15 judges to the ninth circuit and 13 judges to the remainder--an unequal, unfair distribution of judges. Here is what the effect would be. In the ninth circuit, you would have 363 cases per judge. In the new twelfth circuit, each judge would have just 239 cases. So the judges of the ninth circuit would immediately have caseloads 52 percent higher than the judges of the twelfth circuit. Mr. President, the real point is that there is already a resolution to this issue. It was passed by the Senate last session, and it has already passed the House. The resolution is legislation that calls for a study of all of the circuits, with special emphasis on the ninth circuit. The substitute amendment that I am offering today to form a study commission passed the House of Representatives unanimously in June. This bill is identical to the House-passed bill. The study commission represents, I believe, the only principled approach to dealing with an issue as important and far-reaching as the structure of the U.S. courts of appeals. If I may, Mr. President, there has never been a division of a circuit court without careful study and without the support of the judges and the lawyers within the circuit who represent the public they serve. There has never been a division of any circuit in this manner-- arbitrary, political, and gerrymandered. As a member of the Senate Judiciary Committee, I am deeply concerned that the legislation to split the ninth circuit has been included in this appropriations bill with no hearing, no study, no due diligence as to its impact. Section 305 of the bill contains language for this split. It is a misuse, in my view, of the appropriations process. Yesterday, Representative Henry Hyde, the chairman of the House Judiciary Committee, wrote a strongly worded letter, which was circulated broadly. I would like to quote from it. I understand that this week the Senate is expected to consider S. 1022, the Commerce-Justice-State-Judiciary appropriations bill. Included in the bill is a major piece of substantive legislation, the ``Ninth Circuit Court of Appeals Reorganization Act of 1997.'' This provision of the bill (section 305) would amend Title 28 of the United States Code by dividing the existing Ninth Circuit into two circuits. As you well know, altering the structure of the federal judicial system is a serious matter. It is something that Congress does rarely, and only after careful consideration. It is anticipated that an amendment will be offered to replace the circuit division rider with legislation to create a commission-- That is what I am trying to do at this time-- to study the courts of appeals and report recommendations on possible change. This legislation, H.R. 908, has already passed the House unanimously on a voice vote on June 3, 1997. A similar bill, S. 956, was passed unanimously by the Senate in the 104th Congress. This is a far superior way of dealing with the problems of caseload growth in the Ninth Circuit and other courts of appeals. I urge your support for the amendment. Sincerely, Henry Hyde, Chairman. So the House is on record supporting a study. The chairman of the Judiciary Committee of the House writes this letter, and yet this split is in the bill. The administration has issued a strong statement to the Senate Appropriations Committee indicating its support for a study commission and its opposition to the inclusion of such far-reaching legislation in an appropriations bill. Mr. President, I hope the President will veto this bill if it should contain an arbitrary split of the Ninth Circuit Court of Appeals--a split done politically, as a form of gerrymandering. In a letter dated July 11, Gov. Pete Wilson reiterated his support for the commission study and stated that the present effort to split the circuit involves judicial gerrymandering, apparently designed, and I quote, ``to cordon off some judges in one circuit while keeping others in another because of concerns, whether perceived or real, over particular judges' perspectives or judicial philosophy.'' Less than 2 weeks ago, when Governor Wilson wrote this letter, there was a proposal that would have divided the ninth circuit into three circuits and split California in half. Then there was another proposal that would have left California and Hawaii in a two-State circuit, the first time in history that a Federal judicial circuit would have consisted of fewer than three States. In a matter of hours, an amendment was made to the bill, and we have the latest proposal which keeps California whole, teams it with Nevada, isolating a geographical neighbor, Arizona, and placing Arizona with Oregon, Washington, Hawaii, Idaho, Alaska, and Montana. Mr. President, I respectfully submit this is not the way to do the people's legal business. This is not the way to restructure the Ninth Circuit Court of Appeals. Let me offer some history. I authored the first proposal to create a commission on structural alternatives for the Federal courts of appeal in the 104th Congress during a markup session in the Senate Judiciary Committee on December 8, 1985. If that had been passed, the job would have been done by now. The Senate ultimately passed legislation to create a study commission during that Congress on March 20. As noted above, in the present Congress, a commission bill identical to the one I am offering today unanimously passed the House. So both Houses of Congress have spoken on this issue and both Houses of Congress have said if the Ninth Circuit Court of Appeals should be split, no due diligence, consult the judges, consult the attorneys who practice before it, look at the precedents, see that there is study, thought and consideration to what would be the best split. None of this has been done. In a matter of a week, four separate proposals have been put forward and changed with no opportunity for anyone who practices law in the ninth circuit, the huge ninth circuit, to indicate what the impact of those proposals might be. The House-passed bill was modeled on a proposal I introduced with Senator Reid on January 30, 1997. The House Judiciary Subcommittee Chairman Coble and Chairman Hyde moved the bill with the support and cosponsorship of Representative Berman. The current H.R. 908 represents a compromise that was worked out in the House and endorsed by every House Republican and Democrat. I should note that the House-passed bill is very similar to a compromise on a study commission that Senator Burns and I reached together just a few months ago. This all began with Senator Burns. I understand his concerns. He has legitimate interests, legitimate thoughts, and I appreciate them. The last I had heard was Senator Burns signed off on the study commission. So you can imagine the surprise when I heard. My goodness, this is on an appropriations bill. And Members of this body have taken it on themselves to arbitrarily just decide, willy-nilly, how the ninth circuit should be split. The House-passed commission study is fully bipartisan, a 10-member commission. The commission would operate for 18 months, at which time it would make recommendations to Congress for any changes in circuit structure or alignment. I don't think we should subject something as important as the structure of our courts to political gamesmanship, and that is just what this is. The study called for in H.R. 908 is a responsible method of evaluating the current situation and making recommendations that can provide a sound foundation for Congressional action in the future. A study is needed to determine whether this or any proposed circuit division would be likely to improve the administration of justice in the region. That is the fundamental question: Would a split improve the administration of justice, and, if so, what should that split be? Even among those who believe that some kind of split should occur, there is no consensus as to where any circuit boundary lines might be redrawn. During the 105th Congress, proponents of a circuit split put forward these four proposals. One would have split the north from the southernmost States of the circuit. The second would have chopped the existing circuit into three separate circuits and split California in half. The third would have created a narrow stringbean circuit. That was the same proposal that failed to pass the Senate during the 104th Congress. The current proposal, which represents at least the fourth proposal in the 105th Congress, is a modification of the stringbean circuit. Again, no due diligence, no hearings, no study, no testimony--nothing. As I noted before, the proposal isolates Arizona. It combines Nevada. It separates coastal States that have common maritime law. And that is why I say it is gerrymandering. I say if it looks like a gerrymander, talks like a gerrymander, it probably is a gerrymander. Let's talk about the costs inherent in what is happening here today. If this bill passes and should go into law, splitting the circuit will require duplicative offices of clerk of the court, circuit executive, staff attorneys, settlement attorneys and library as well as courtrooms, mail and computer facilities. According to the ninth circuit executive office, neither Phoenix nor Seattle currently have facilities capable of housing a court of appeals headquarters operation. As part of the review of last year's similar proposal to split the circuit, the GSA estimated that it would cost a minimum of $23 million to construct new facilities for a headquarters in Phoenix, and I would be very surprised if it was as little as $23 million. Based on GSA costs, the ninth circuit executive has estimated that building and renovation costs for creating or upgrading new headquarters in Seattle and Phoenix would amount to at least $56 million. Additional combined outlay of another $6 million in startup costs would be needed to outfit both Phoenix and Seattle. The CBO last year estimated the cost of duplicative staff positions at $1 million annually. The new proposal calls for two coequal clerks of the court in the twelfth circuit. Assuming each clerk would have the customary deputy clerk and staff attorney, an additional $300,000 in salaries would be added to the total. So the new twelfth circuit would cost an additional $1.3 million annually for duplicate salaries, and minimum of $25 million in Phoenix and an additional amount for Seattle. It is estimated the cost would run in the neighborhood of $60 million. This wouldn't be so bad if there just hadn't been approved and spent $140 million to rehabilitate and seismically equip the Ninth Circuit Court of Appeals in the city of San Francisco and Pasadena--$140 million has just been spent. I just visited the San Francisco ninth circuit. It compares with the U.S. Capitol. There is a brand-new library already built in, magnificent chambers, one library that is solid redwood, marble that is incredible, lighting fixtures that go back well over 100 years. It is an amazing and beautiful building. Under the configuration of States proposed for the new twelfth circuit, the circuit executive estimates that upward of 50 percent of the space recently renovated in San Francisco and Pasadena at a cost of $140 million would no longer be needed. The space was specifically designed to meet the business needs of the court of appeals. The executive office estimates, ``It would cost many tens of millions of dollars to modify the space to make it usable by tenants other than the court of appeals.'' Let me talk for a minute about the real risk of an impetuous political and gerrymandered split of the ninth circuit. Forum shopping: Organizations and entities whose activities cut across State lines, and those who sue them, would be able to forum shop to take advantage of favorable precedents or to avoid those that are unfavorable. And I suspect, frankly speaking, that this is just what is behind this split. Thus, an additional burden would be placed on the U.S. Supreme Court to resolve conflicts that are now handled internally within the circuit. Here are some examples provided by the ninth circuit of how dividing it could invite forum shopping: water disputes concerning the Colorado River, which affect California, Nevada, and Arizona; commercial disputes between large contractors like Boeing and McDonald--perhaps that is resolved now--or Microsoft and Intel; different legal precedents affecting the shipping industry along the coastline of the continental United States and Hawaii. Think of the complications created if different commercial and maritime rules governed the Port of Los Angeles and the Port of Tacoma and Hawaii. The ninth circuit includes a vast expanse of coastal area, all subject to the same Federal law on cargo loading, on seaman's wages, on personal injury, and maritime employment. Vessels plying the coast stop frequently at ports in California, Washington, Alaska, Hawaii and the Pacific territories. If the circuit were to be divided, seamen would have an incentive to forum shop among port districts in order to predetermine the most sympathetic court of appeals to hear the case. In the commercial law area, all of the States in the circuit have considerable economic relations with California because of its large and diverse population. In a recent case, Vizcaino v. Microsoft, the ninth circuit decided to hear a case en banc concerning whether Microsoft contractors were entitled to the same ERISA benefits and stock options as were regular employees. Microsoft is a large corporation with primary offices in Washington but significant business operations in California. If the ninth circuit were split, Microsoft or its employees might choose to bring a lawsuit in either the ninth or twelfth circuit, in hopes of finding a more sympathetic court. The judges and lawyers of the ninth circuit overwhelmingly oppose what is happening in this bill. Let me repeat that. The lawyers and judges in all of the ninth circuit States overwhelmingly oppose what is happening in this State, Justice, Commerce appropriations bill. On four occasions, the Federal judges in the ninth circuit and the practicing lawyers in the ninth circuit judicial conference have voted their opposition to splitting the circuit. The official bar organizations of Arizona, California, Hawaii, Idaho, Montana and Nevada, and the National Federal Bar Association, all have taken positions against circuit division. No State bar organization in the circuit has taken a position in favor of circuit division or what is happening in this bill. Candidly speaking, this is a political decision of Senators of the Appropriations Committee to affect the legal business of 50 million people in the United States with an arbitrary split, gerrymandered, of the Ninth Circuit Court of Appeals. Candidly speaking, also, the ninth circuit is large. California alone is predicted to be 50 million people by the year 2025. Whether the circuit should be split or not, I can't say. I strongly believe it is a decision that should not be made, however, either politically or in a cavalier fashion. The decision should not be made without study, without hearing, without comment from those lawyers and judges whose clients are affected by it. If--and I say if--the circuit is eventually split, it should be the product of diligence, of study, of hearing, of commentary. It should be part of an analysis of how the circuit courts are functioning in the United States. There may well be a better split involving other States. I don't know, and I would hazard a guess that no one in this Chamber knows that either. But this does mean a careful study of population should be undertaken. It means an even distribution of caseload by judge, not a rammed-through circuit split that has a 52 percent higher caseload for judges in this new ninth circuit than in the twelfth circuit. On its face, it is patently unfair. Anybody who looks at any split that says you split it so that one set of judges has double the number of cases than the other--that doesn't meet a simple test of fairness. There should be a careful study of precedents, of commercial law, of maritime law, of the other aspects of precedents. California now has the largest consumer market in the United States in Los Angeles; the third largest in the San Francisco Bay area. It is a huge consumer market, and it is going to be bigger with all kinds of intercommunication among these States. There should be a study of costs. I pointed out the duplication of staff, I pointed out the need for two new courthouses when two already have been refurbished at a cost of $140 million for the taxpayers. All of this is being done without any study, any hearing, any commentary. It is not something of which this great body can be proud. I notice that the distinguished Senator from Nevada is here, and if I might ask him, I believe he would like 10 minutes? I will be happy to yield to him.