Barney Frank

Mr. FRANK of Massachusetts

Mr. FRANK of Massachusetts. Mr. Chairman, first I want to welcome the gentleman from Georgia's belated conversion to democracy. I gather he is no longer insisting on the amendment he successfully authored last year to prevent the counting of votes, which I must say seems to me the least intellectually valid enactment of the United States Congress in its history. He has backed away from that. But what he now has is a rather poorly drafted amendment that is very different than the one its proponents defend. In the first place, it does not just say law, it says law, rule, or regulation. If there were to be a policy in the prosecutor's office governing plea bargaining in controlled substances cases and my colleague wanted to amend that rule by which he controlled the practice of plea bargaining, it might be effective, but all the more important is the other language. It does not just say to legalize it, it says otherwise reduce penalties. So do my colleagues know what would be illegal under this if it applies? Government Pataki of New York, the Governor of New York, has recently proposed, a good Republican, George Pataki, has just proposed to reduce some of the sentencing. They have mandatory minimums, and he said those are not working. If they were governed by this, it could not happen. Now are we going to tell the District of Columbia that they cannot in their policy experiment with a diversion program for first offenders, with reducing mandatories? This Congress passed a law in 1994 over the objections of many on that side, but it was passed by the Congress, which did away with mandatory minimums in some cases for some controlled substances. Had we been bound by this law, it could not have happened. This is an outrage. The debate about legalization and medical marijuana can move forward. I will note that this horrendous policy of supporting medical marijuana that is being decried over there has been supported by the electorates of many States, and I keep noting the extent to which the Republican party, at least as represented in the House, is falling out of love with the voters of America. Time and time again in public opinion polls or referenda the voters disappoint my friends over there. Then we heard from one gentleman about, well, we need to do prohibition. His argument was for prohibition of alcohol, not just marijuana, but this goes far beyond legalization. This says they cannot reduce penalties, they cannot reduce mandatory minimums, they cannot experiment with diversion programs. It ought to be rejected.

Mr. FRANK of Massachusetts

Mr. FRANK of Massachusetts. Mr. Speaker, in the Boston Globe for today, Tuesday, July 27, there is an excellent editorial occasioned by the terrible murder of 14 Serb farmers in Kosovo. As the editorial notes, NATO--with the United States as a lead member--has an absolute obligation to do everything humanly possible to apprehend the murderers of these men, and of course an even greater obligation to do everything humanly possible to prevent any recurrence of this sort of outrage. I believe that the military action in which America took the lead against Serbia was morally justified by the need to prevent the continued systematic oppression of the Albania population of Kosovo. But exactly the same moral considerations demand that we do a better job than we have of protecting the Serbian people left in Kosovo. The Boston Globe editorial is a forceful, lucid and morally compelling statement and I ask that it be printed here. NATO's Obligation to the Serbs Precisely because NATO's justification for intervention in Kosovo was humanitarian, the NATO allies must not allow Friday's gruesome slaughter of 14 Serb peasants in Kosovo to go unpunished. A war for humanitarian motives contradicts its own purpose if it leaves one group of noncombatants unprotected. The Serb demagogue Slobodan Milosevic understood immediately the political implications of the murders. The next day he said the slaughter of Serbs in a province that NATO still recognizes as an integral part of Serbia proves that there is a need for Yugoslav soldiers and Milosevics special police to return to Kosovo. Such a return of Milosevic's ethnic cleansers would, of course, vitiate NATO's military triumph. Milosevic can have no illusions about the possibility that his killers and rapists will be allowed any time soon to return to Kosovo. But his political point is well taken. If Serb civilians can be massacred at will in Kosovo, then NATO's propaganda is negated and the allies' war against Milosevic can be described as a naked power grab--an effort to steal a Serb province from its rightful owners. To prove this was not NATO's war aim, the allies keeping the peace in Kosovo and the UN bureaucrats managing the province's rehabilitation must act quickly and decisively. Although Hashim Thaci, the Kosovo Liberation Army's self- appointed prime minister, has said members of his provisional government ``strongly condemn this act,'' the KLA must be encouraged to take a public role in locating the killers of the 14 Serbs. At the same time, the NATO countries must send to Kosovo the full complement of peace-keepers they promised. At present, only 60 percent of the 32,000 have arrived. The revenge killings also illustrate the need for rapid dispatch of 3,000 more international police. Only 170, a small fraction of those committed, are yet serving in Kosovo. If the NATO allies allow Serbs to be murdered and expelled from Kosovo, they will lose in peacetime the war they thought they won from the air.

Mr. FRANK of Massachusetts

Mr. FRANK of Massachusetts. Mr. Speaker, I have been struck by the change in the rhetoric from my Republican colleagues with regard to the work of the Congress, particularly the House of Representatives. For years, I have heard them talk about what they were going to accomplish beginning with the Contract with America that they trumpeted. Now in the last couple of weeks, there is a new tone. Instead of telling us what they are going to do, they are explaining why they have been unable to do it. The Republicans are into a new phase in the Republican revolution, whining. They are complaining that while they wanted to do all of these things, they have been unable. What we now have, rather than an announcement of a program is an explanation for its failure. I was particularly struck to note that they were blaming the minority leader, the gentleman from Missouri (Mr. Gephardt), in large part. I reread the Contract with America. One does not get to read only for pleasure in our work. Sometimes we must read as a duty, so I reread the Contract with America, and I did not find in there that the gentleman from Missouri (Mr. Gephardt) was listed as a subcontractor. I did not read in there that the Contract with America said here are these bold things we will do if the Democrats let us. But now what do we hear? The Democrats would not let me do it. It is a kind of a reverse Flip Wilson. It is no longer the devil made them do it. It is that the gentleman from Missouri (Mr. Gephardt) would not let them do it. Well, I should say in fairness, Mr. Speaker, that they have even been giving me a little bit of the credit. We are not a profession known for great modesty, but I am a little reluctant to accept quite as much credit for their failure as they give me. Clearly, it would be in my interest in many quarters to accept that credit without dissent but I do have to be honest and say they give me a little more credit than I deserve. I want to say right now that when the Appropriations bills have come up, I have not worn my costume of the gentleman from Oklahoma (Mr. Coburn) and held the bills up. That was not I. It was not the gentleman from Missouri (Mr. Gephardt). That was a member of their own party. It is not I who has decided, for instance, that term limits, and remember term limits? Some members do. The gentleman from Washington (Mr. Metcalf) does because he is an honest man who is abiding by his promise, but term limits was part of the Contract with America. Well, that contract apparently has been declared null and void because in this year we have the Republican Party in control of the House, and no one has brought up the term limits issue. It seems to have evanesced into the wind. Now, as I said, they are arguing that it is the fault of the gentleman from Missouri (Mr. Gephardt) and myself. They are clearly wrong. They have been the majority. They are in their third Congress of a majority. They have the votes. They are, in fact, unable to do things for which I am glad, but they have misargued the cause. Their platform has not become law, not because of myself and the gentleman from Missouri (Mr. Gephardt), much as I would love to take the credit, but because it is unpassable, and it is unpassable because it is unacceptable to the American people. Their problem is that they won an election in 1994 based on dissatisfaction with the Democrats, acknowledgedly, and then proceeded to a program which included at one point shutting down the government, excessive tax cutting that even a few on their own side do not like, trying to roll back environmental regulations, term limits which they are not prepared themselves to abide by. It is not we who have stopped them. It is the American people. And indeed what has been notable is the extent to which the Republican Party has fallen out of love with the American people. They came announcing themselves as the tribunes of the voters and increasingly what we have from my Republican colleagues is a sense that the voters are not to be trusted. We heard that, of course, most clearly during the impeachment hearings, but we hear it in other things. They are afraid that if they do not engineer a fiscally irresponsible tax cut far more than the economy calls for, the people will ask Members of Congress to vote for things. We cannot trust those people. They want a prescription drug program for the elderly. They just lack the moral fiber to go without drugs. They are going to insist that if Congress has some money there we say to 73-year-old people who are faced with a $3,000 and $4,000 drug bill on a $25,000 income that we ought to help them. They will insist on more transportation facilities. They will insist on cleaning up some environmental sites. So that is the problem, Mr. Speaker. The Republican Party, it is true, is not getting anywhere with its agenda. By the way, on those rare occasions where they have gotten somewhere, we have paid too high a price. If I were tempted to try and listen to their pleas and help them out, I would remember the 1997 Balanced Budget Act where they cut Medicare to pay for capital gains tax cuts and all over this country in hospitals and home health care agencies in Massachusetts where we have lost prescription drugs, people are paying the price for this. I have been struck by the ``dear colleagues'' I get from time to time from some of my Republican colleagues who having voted for the Balanced Budget Act of 1997 have now decided that it did a terrible thing. It cut Medicare. Apparently, they were somewhere else at the time. Apparently, when the Balanced Budget Act was being formulated and voted and cutting Medicare to pay for a capital gains tax cut, they were absent. They now have returned to find that the capital gains tax cut undid some important parts of Medicare. Now, it is true, Mr. Speaker, if they want to make another deal involving a tax cut and taking funds away from Medicare I will try to block it. The minority leader, the gentleman from Missouri (Mr. Gephardt) will try to block it and I am glad, but essentially the fault, dear Republicans, lies not with the minority. It lies with themselves and with the unacceptable nature of their program to the American people.

Mr. FRANK of Massachusetts

Mr. FRANK of Massachusetts. Mr. Speaker, I was interested to hear the colloquy between the gentleman from Texas (Mr. Edwards) and the gentleman from Florida (Mr. Canady). It reinforces the central point. This bill is a Federal act that says to Federal judges, ``Go forth and pick and choose amongst State laws.'' This empowers Federal judges to decide what is the compelling interest according to the State and what is not. And if a State has said they are going to protect them if they are unmarried and seek with their child to get housing, it will be up to the Federal judge to decide whether that State law beats a religious objection; if they are gay or lesbian, it will be up to the Federal judge to decide whether the State law in Connecticut or Wisconsin or Minnesota or California is overridden; if they are an unmarried couple seeking to live together, it will be up to the Federal Government to judge whether or not they can rent an apartment from a corporation, the stockholders of which said it is their religious objection. The gentleman from California (Mr. Rohrabacher) cited the Boy Scouts and the March. Let us be very clear. Neither one of those has the remotest thing to do with this bill. Both of those entities, the people having the parade and the Boy Scouts, are already protected under the law. Nothing in the law would add to that protection. But, on the other hand, nothing in the Nadler amendment would detract one iota. The gentleman from New York (Mr. Nadler) says this: If they seek to live somewhere in a non-owner-occupied building or a very large apartment building, or if you seek a job with an employer with more than five people, if they can do the job, if they can pay the rent, their personal habits, whether they are married or not, whether they are gay or not, whether they have some particular affliction or not that might offend someone's religion will not keep them off of the work rolls, it will not keep them out of that house. We do not impinge on anybody's individual religious practice. Nobody goes into anybody's home. No one is involved here, under the Nadler amendment, with the ability to interfere. We are saying that they should not say where a State has said they wish to protect them based on their sexual orientation or their marital status or the fact that they have children. They should not allow Federal judges selectively to overrule those because those Federal judges do not find the State's policy a compelling interest.

Mr. FRANK of Massachusetts. Mr. Speaker, I thank the ranking member for yielding me this time. There are a number of concerns that are raised by this bill. I want to focus on what is central to me, and I am hoping that the House will take some direction here from Governor Bush of Texas. He appears to be growing in popularity on the other side, and I am sorry they are rejecting his wisdom in this one case. When a bill like this was presented in Texas, an amendment was offered which exempted all legislation aimed at protecting the civil rights of individuals. What the law in Texas says is, yes, we will protect people's rights to exercise their religion, but where we have as a legislature and a governor decided that certain rights of individuals and groups are important and that certain classes of people should be protected against discrimination, we will not allow you to use religion as a license for this discrimination. Now, that was signed into law by Governor George Bush, and I thought it made a lot of sense. We are not trying to go as far as Governor Bush. The gentleman from New York has a very thoughtful amendment which allows people to invoke religion as a means of ignoring civil rights laws. It allows, in fact, people to use their religion as a license to discriminate in a number of cases that would not be allowed in Texas. I think that is a very reasonable accommodation the gentleman has offered. He has said you do not give it to corporations, et cetera. If the amendment offered by the gentleman from New York does not pass, what we will have is a law which will say, ``All you need do is invoke your religion and you can defeat many civil rights laws.'' Now, interestingly it says, ``Unless the courts find that that particular civil rights law protects a fundamental right.'' I am interested that people who describe themselves as conservative opponents of judicial activism want to so empower the judiciary, because what this bill will do absent the amendment by the gentleman from New York, is to say to the court, ``You now have the power to decide.'' There are civil rights laws at the State level. Various States have passed laws protecting different groups of people, based on religion, based on marital status, based on whether or not you have children, based on sexual orientation. We the Congress will say to you the Federal courts, ``Pick and choose among those. You decide which of those will have to give way to this Federal statute and which do not,'' rather than have the Federal Government decide, or emulate Texas and say, ``In general the religious right will win unless it is an antidiscrimination law.'' And remember, under our constitutional system, we do not want to subject individuals to some kind of inquisition when they invoke religion. So people who wish to invoke religion, people who want to go to Federal court and say, ``Hey Federal judge, let me ignore this law that this State passed,'' under this law the Federal courts will be empowered to let people pick and choose and they simply will have to say, ``My religion doesn't allow it.'' We certainly do not want a situation where that religion is subjected to some kind of examination. So what you will do is to tell the States that no matter what they may have decided through their own local democratic processes about protecting groups, we the Congress will empower Federal courts to pick and choose among them and say ``no'' to some and ``yes'' to others. I do not think that is appropriate. While the amendment from the gentleman from New York, because he has been very accommodating in this, does not completely rule that possibility out, it substantially diminishes it and it is the one thing that will save this bill.

Mr. FRANK of Massachusetts

Mr. FRANK of Massachusetts. Mr. Speaker, the University of Massachusetts Dartmouth is an extremely valuable institution. It is an excellent educational facility, and it is a great example of a public institution of higher education that not only seeks to provide a first rate education to its students, but cooperates indeed often takes a leadership role--in regional economic development. One of the reasons this University has been such a valued part of Southeastern Massachusetts in recent years is the leadership of its Chancellor, Peter Cressy. On behalf of my colleague from Massachusetts (Mr. McGovern) and myself, I want to insert here in the Record the editorial from the New Bedford Standard Times, on Wednesday, July 14, which pays a well deserved tribute to the high quality leadership Peter Cressy provided. In several areas of great importance to Southeastern Massachusetts economically, particularly including textiles and fishing, Peter Cressy has done everything possible to make sure that the University provided significant help to the broader community, while at the same time fully maintaining the educational mission that is the primary justification of a college. At a time when some question the value of publicly funded enterprises, Peter Cressy's leadership at the University of Massachusetts Dartmouth gave us an excellent example of how tax dollars can be put to excellent use for the broadest possible public benefit. My colleague (Mr. McGovern) and I will miss his leadership, his energy, and his enthusiasm at the head of this extremely important institution. And we ask that the editorial from the New Bedford Standard Times be printed here as one example of how excellent leadership can help us get the best of our public efforts. Cressy Leaves a Great Imprint When Dr. Peter H. Cressy jumped from the Massachusetts Maritime Academy in Bourne after two years to take over at the helm of UMass Dartmouth, there were those who suggested that this energetic and effective leader might not stay more than two or three years. I wasn't his style. Dr. (former Rear Adm.) Cressy's career was marked by one success after another, though his Navy days and then on his own. He made his mark and moved on. He had turned Mass. Maritime around when some thought that to be impossible; he then plunged into his UMass Dartmouth job with energy and enthusiasm that were rarely witnessed before. Sometimes controversial but always self-assured and outgoing, Dr. Cressy set about to remake the university and to multiply its ties to the surrounding community. He stayed for six years, putting the university on the national map, bringing it up to full membership in the UMass system, vastly improving its fund raising, and as he said in his unexpected resignation announcement on Monday, established the marine science and technology program, improved the budget process, improved admissions and retention, increased research, added a Ph.D. program, established centers for business and so on. Dr. Cressy's methods were not to everyone's taste; that is not uncommon for a bright, visionary individual. But there is no doubt that SouthCoast Massachusetts would be far behind where it is today without his leadership and his initiatives. We wish him the best in his new career in Washington, D.C., as president and CEO of the Distilleries Council of the United States, and we hope to see him follow through on his promise to eventually retire to our part of the world. We would be happy to put him back to work.

Mr. FRANK of Massachusetts

Mr. FRANK of Massachusetts. Mr. Speaker, when the President said he was going to announce the program to expand Medicare coverage in some areas and to undo some of the negative effects of the Balanced Budget Act of 1997 using some of the additional revenues that have become available, I was ready to cheer unreservedly. I now cheer reservedly. I would give the President between 1\1/2\ and 2 cheers out of a possible 3. The President's program is clearly better in all respects than anything we will get from the majority party in the House or from any of its presidential candidates. So I am glad that the President has moved forward. But he has not moved forward enough. First of all, we have to be more forthright in admitting error. Now I acknowledge, Mr. Speaker, this is an error which it is easier for me to admit since I did not participate in its committal. I am talking about the 1997 Balanced Budget Act. Congress was very proud of the Balanced Budget Act, which cut Medicare to pay for capital gains tax cut and also put limits on other government spending which virtually everyone in the House admits are unrealistic, but admits this privately only. What we did in 1997 was to cut Medicare indubitably. I am struck by the number of my colleagues who now acknowledge that Medicare was cut too deeply, although I am surprised by the number of them who appear not to have been in the room when it was done. As I read, people talk about how the 1997 budget cuts now turn out unfairly to have cut Medicare. I believe that I am seeing an interesting phenomenon. I cannot remember a time in history when so many people have disclaimed responsibility for the entirely foreseeable consequences of their own actions. The President acknowledges, having signed that bill, that there was error, but insufficiently. He is prepared to undo some of the harm of the 1997 Budget Act, but not enough. He wants to, in fact, impose some cuts in the period after 2002 when it would have ended. The President cuts hospital still too much. We should remember, when we are talking about reimbursement to hospitals, we are not talking about the income of wealthy physicians, although physicians have a right to be concerned about their income. We are talking about cutting funds that go to pay some of the hardest working people in this society who get little money for tough jobs. The people who staff hospitals include many people who work 7 days a week, 24 hours a day in unpleasant ways, cleaning and cooking and preparing patients. They are underpaid as a whole and ought to be paid more. We should, in fact, increase substantially over what the President proposes what we do to reimburse hospitals. The notion that the wealthiest society in the history of the world in the midst of a booming economy cannot afford adequately to compensate people who provide us health care is simply wrong. That same unwillingness to provide sufficient funds becomes apparent in the President's drug bill. I give him credit for proposing that we begin to cover prescription drugs for some degree for lower income people and others on Medicare. But he does not, again, do enough. For example, the plan says at 2008, after it is fully implemented, the Federal Government will pay up to half of $5,000 a year in prescription drugs. Now, understand that the language supporting the bill says that will cover 90 percent to the people at that time. In other words, 10 percent of the people will still not get 50 percent coverage. Others, of course, will get 50 percent. But 50 percent coverage, if one is living on $22,000 or $23,000 a year, and one has got to pay $520 a year in premiums, and then one has got to pay another $2,500 for one's half share of the $5,000, that is pretty significant. That is $3,000 for drug coverage out of one's $22,000 or $23,000. But even that, inadequate in and of itself, takes too long to become real. The President proposes that we start by only reimbursing people up to $2,000 in drugs, and we reimburse for only half. So in the first year, if one is paying $3,000 or $4,000 a year for one's drugs, which is not unusual among older people with various ailments, the Federal Government will help one to the extent of only $1,000 to that minus the $288 one has to have paid in premiums in that first year. Why phase this in to $5,000? If the $5,000 is the reasonable figure, why do we not get to it right away? Sometimes one has to phase things in because they are complicated. One has to make sure one gets them worked out. But paying for half of $2,000 is not simpler than paying for half of $5,000. We are talking here about a purely numerical calculation. There was no justification whatsoever either, in my judgment, for the fact that it is too low or for the fact that it takes so long to reach that number unless we want to cut taxes by $800 billion or $900 billion. It is true, if one begrudges public spending even for important purposes such as helping older people pay for their medications, then one cannot afford this. But the President correctly repudiates the Republican effort to cut $800 billion or $900 billion. The President understands that that would be excessive. He should follow through on his understanding. Inadequately compensating hospitals is not in the interest of this country. Refusing to acknowledge the error that this Congress and this President made in 1997, the Balanced Budget Act, is a mistake, and having too small a prescription drug program ill-suits a country of our wealth.

Mr. FRANK of Massachusetts

Mr. FRANK of Massachusetts. Madam Chairman, this is the most shameful abuse of the democratic process I have ever seen. My colleagues have an effort not to stop the insurance company from demutualizing, but simply to require them to abide by the State law where they were chartered and their contract with their policy holders. The gentleman from Virginia is not saying they should be able to demutualize, he is saying they should be able to do it without sharing with the policyholders what they pledged to the policyholders they would do when they sold them the policy. That is so hard to defend that he is literally hiding behind battered women. Why are these together? Domestic violence and redomestication? I am surprised the gentleman does not have in there housebreaking one's dog for domestic animals because that is all it has got in common. The gentleman has something so bad it cannot stand on its own. He is asking to give permission to the mutual insurance companies. What the gentlewoman from New York (Mrs. Kelly) said is completely irrelevant. No one is trying to stop them from demutualizing. They now have to, in certain States, demutualize in accordance with the rules of that State where they were chartered and in accordance with what they promise the policyholders. This is a license for them to avoid States rights, break the rules that they have for policyholders, and the gentleman shamefully does it by hiding behind the victims of domestic violence.

Mr. FRANK of Massachusetts. Madam Chairman, I yield myself such time as I may consume. Madam Chairman, I should note that under the rules someone is entitled to 5 minutes in opposition. I would describe myself for these purposes as leaning against but open to persuasion, I would reassure my friend, the gentleman from Florida (Mr. Foley). I am not firmly committed on the subject. I was interested in what the gentleman said and will listen some more, but I also wanted to use this occasion to address the general bill, Madam Chairman. It is a somewhat constricted debate situation. What I wanted to do was to explain why I would be voting against this bill, although I think on the subjects that it deals with it does a good job. That is, I think this is a bill which suffers from incompleteness. I think with regard to the regulation of the financial services industry, this is as good a product as we can expect from a broad representative body. I think the Committee on Banking and Financial Services on both sides worked seriously and well under the leadership of the chairman and the ranking member. The problem is, in my mind, it carries out a pattern that is too much present in America today and that I think threatens great harm even as it makes some specific progress, and that is a pattern in which we do a good job of fostering conditions in which the capitalist system can flourish. It is in our interest that the capitalist system flourish. Capitalism clearly has established itself as the superior way for a society to generate wealth, and the generation of wealth is very important. It is important in and of itself because it provides resources for individuals to enjoy themselves, and it is important as a way to provide the resources which help us deal with other problems. On the other hand, we have learned that capitalism, as great an engine as it is in generating wealth, can have some downsides. In particular, the era of capitalism in which we now are, a kind of globally competitive world, is one where increased wealth is unfortunately accompanied by increased inequality in many cases and by an undermining of society's capacity to deal with some of the social problems that the market does not take care of. This bill should have been an opportunity to deal with both aspects of that. It is a good piece of legislation for setting forth the conditions for the financial services industry, central to capitalism. It is a good situation in which the intermediation function of the financial services industry can go forward. We understand that, in and of itself, that is going to leave us some problems. In particular, I regret terribly the refusal of the majority to let us deal seriously with the amendment offered by the gentlewoman from California, which would have tried to deal with those geographic areas that are left behind. I do not think we adequately deal with privacy. In fact, in some ways we may be making it worse. That is, unfortunately, a kind of paradigm we are following too frequently. We go forward and we provide the conditions and improve the conditions for wealth to be generated, and I am for that. I would vote for this bill if we were talking simply about these conditions and no other were relevant, but to do that while at the same time we refuse to address the serious problems of poverty in inner cities, and obviously this is not a bill in and of itself to alleviate poverty, but it does seem reasonable to me to say to the large financial institutions they are getting a pretty good set of conditions here. We are responding to their needs. Can they not make a little extra effort in the course of this to help the people who are being left behind? Can they not help the consumers? I understand if we leave it entirely to the market they would not want to do that. That is why we ought to be coupling market-enhancing legislation like this with some reasonable conditions that say they are going to make more money out of this, and that is a good thing because that is how our society will prosper. But can they not take a little bit of the extra money that they are making out of this and worry about the poor, worry about geographically underserved areas, worry about consumer protection? Can they not do a little more on privacy? Can they not maybe restrict a little bit the extra money they are going to make so people's legitimate privacy concerns can be addressed? That is the tragedy of this bill. It is a good bill in what it does, but it is a bad bill in what it does not do. While in other circumstances I might have felt, well, that is the best we can do, it has unfortunately become too common in our society. I will say I am affected on this by what is going on in my own State where two of the largest banks are merging and are not, in my judgment, willing to do enough to share the benefits of their merger with people who are not doing so well. So I congratulate the work that the leaders of the Committee on Banking and Financial Services and others have done on the banking provisions that deal specifically with the financial services, but I will not be part of a conditioned pattern of helping people make more money and not worry about those who might be left behind in that very process. With that, I would reassure again my friend, the gentleman from Florida (Mr. Foley), that I am open to persuasion Madam Chairman, I reserve the balance of my time.

Mr. FRANK of Massachusetts. Madam Chairman, I rise in opposition to the amendment.

Mr. FRANK of Massachusetts. Madam Chairman, will the gentleman yield?

Mr. FRANK of Massachusetts. When the gentleman tells me the Federal Reserve has no objection, is he trying to get me to be for it or against?

Mr. FRANK of Massachusetts. Madam Chairman, I yield myself such time as I may consume. Madam Chairman, let me say that I have been persuaded, and I will support this amendment. When the gentleman mentioned the Texas Banking Department, my colleague from Texas urged me on. I will say, as we improve this bill and its specific impact on the financial services industry, I regret even more our collective unwillingness to do more than we are doing and to do, in fact, what we could easily do to help those who are being left behind. It is an inappropriate continuation of a pattern of helping the wealthy and the powerful, and we all benefit to some extent from that, but ignoring the other end of the society.

Mr. FRANK of Massachusetts

Mr. FRANK of Massachusetts. Mr. Speaker, I am disappointed at the failure of the United States and our allies to do a better job of protecting the Serbian population of Kosovo. I think we had a strong moral right to go to the aid of the Albanian population of that place. We did it because we wanted to protect innocent people from being persecuted based on their ethnicity. No doubt there are Serbs who deserve to be prosecuted because of their actions, but no people deserves to be mistreated because of their ethnicity. We took over the province militarily. We did so for good reasons. But along with taking it over comes an obligation to protect innocent people. I understand it is difficult. I understand this is not the primary task which military people have been trained for. We will not fully do it until we get a police force in there. I understand things happened very rapidly before there could be complete preparation. The fact is, we have a strong moral obligation. As strong as our moral obligation was to protect the Albanian Kosovars, so do we have a moral obligation to protect the great mass of Serbian people. We are not doing nearly as good a job about that as we should.

Mr. FRANK of Massachusetts

Mr. FRANK of Massachusetts. Mr. Chairman, if there were to be unanimous consent for it to be offered now since it might not get too far along, would that be in order, to ask for unanimous consent that the gentlewoman be allowed to offer it now?

Mr. FRANK of Massachusetts. Mr. Chairman, will the gentleman yield?

Mr. FRANK of Massachusetts. Mr. Chairman, will the gentleman yield again?

Mr. FRANK of Massachusetts. I understand, but the amendment is to a bill which leaves civil forfeiture in place, and the gentleman just cited as an argument for the amendment, presumably, that many, many of these are uncontested. Now the underlying bill says they just have to meet the clear and convincing standard, and I am arguing that in an uncontested case one does not have to be a crack lawyer to meet the standard of clear and convincing, so that is an irrelevancy on the question of the amendment versus the underlying bill.

Mr. FRANK of Massachusetts. If the gentleman would yield, I congratulate the gentleman on getting me to acknowledge what has been my policy for years and what is the Chairman's policy. The gentleman is flailing away at a straw man. I do not see anything on here that totally abolishes civil forfeiture anywhere.

Mr. FRANK of Massachusetts. Mr. Chairman, I move to strike the requisite number of words. Mr. Chairman, I want to speak on the amendment. I say that because not all of the conversation we have had was on the amendment. My colleague from New York brilliantly argued against a nonexistent proposition, at least existent in the current context; namely, that we should do away with civil asset forfeiture. There was an agreement that we should have it. The questions are several. One, should the standard that the government has to meet to take someone's property because that person has either committed a crime or not prevented a crime, should the standard be the lowest possible, preponderance of the evidence, or should it be the intermediate standard of clear and convincing? We are in an ironic situation now, and we will be even after the bill is passed, as I hope it will be, because I do not think it should be changed from that; it is now harder to prove that one is guilty of the crime than to take away one's property, even though the property may be more. In fact, we have this situation: One may be punished here substantially by the loss of one's property not for committing a crime, but for failing to prevent a crime from being committed. One forfeits one's innocent-owner defense if one has not taken steps to prevent the crime from being committed. Now, the government need only prove, according to the amendment to the amendment, by a preponderance of the evidence that one failed to prevent the crime from being committed, and it can take one's property. That seems to me to be quite astonishing, that there is a lower standard for punishing someone for simply not stopping someone else from committing a crime than from committing the crime. It seems to me one is more culpable if one commits the crime, but it is easier to go after someone in the other circumstance. Again, I want to stress, the notion that there is some division between losing one's property in a civil forfeiture and losing it in a criminal proceeding exists in very few minds and in no reality. There is no difference between having one's property taken. The debate here is clear and convincing versus preponderance. The gentleman from New York said, in 85 percent of the cases, they are uncontested. Well, I submit that in 85 percent of the cases, if they are uncontested, establishing this to occur under a clear and convincing standard would not be that hard. One cannot lose, it seems to me, an uncontested case simply because the standard of truth is too high. We could probably meet beyond a reasonable doubt. We could probably meet absolute certainty, but we could certainly meet clear and convincing. So in those cases which are uncontested, the amendment is, of course, irrelevant. In those cases which are uncontested, there is no dispute, and one could easily win.

Mr. FRANK of Massachusetts. I yield to the gentleman from New York.

Mr. FRANK of Massachusetts. Mr. Chairman, reclaiming my time, the gentleman is off the point, and I am not going to let him get off the point in my time. The question was, should they have to meet the standard of clear and convincing or beyond reasonable doubt. I was quoting the gentleman where he said, in 85 percent of the cases they are uncontested. And my point, which I thought would be uncontested, is that an uncontested case, it is not that hard to meet the standard of clear and convincing, so the gentleman's crack houses would, in fact, be closed down. But the notion that it is not punitive I would have to reject. It is always punitive for the government to come and take away one's property. The notion that there is this nonpunitive confiscation is what is at the heart of this. The notion that one is found by the government to have done something terrible, and, as a result of that, one is going to lose one's property, and one is, therefore, not punished does not make any sense. There are a couple of other arguments I want to make. One, the gentleman said that he dislikes this because it covers pending cases. If the gentleman agrees that the current system is unfair, as they say they have, why do we not want to cover pending cases? Is the government entitled to a remaining quota of unfairness? How can one agree that the current system is wrong and needs changing and then say, oh, but all of the poor guys who got caught in this current one, we do not help them. I would think that is a rather contradictory argument. The final point is the business about a lawyer. Again, we ought to stress, opponents of the bill, supporters of the amendment keep talking about the drug dealer. We are not here talking about drug dealers. We are talking about people who have been accused either of being drug dealers or of not stopping other people from being drug dealers. And the question is not how do we punish acknowledged drug dealers, the question is, by what procedure does the government determine whether or not one is a drug dealer or someone who aided a drug dealer. That is why the underlying bill is so much better than the amendment.

Mr. FRANK of Massachusetts. Mr. Chairman, I move to strike the last word. Mr. Chairman, I appreciate the spirit of the gentleman from Texas. I think it goes further than it ought to. I do not think we ought to restrict this only to cases where there was a criminal conviction, but the gentleman does highlight once again the importance of fundamental reform. There is one aspect of the issue that I wanted to go into further. That is, in the substitute offered by the gentleman from Arkansas and the two gentlemen from New York, one of the things that seems to me most egregious was this notion that yes, we will appoint you a lawyer, but before we will appoint you a lawyer our lawyer gets to question you. It really is quite an extraordinary notion. The current situation is one in which people, in some cases who have been convicted of nothing whatsoever, and who may, remember, only be accused, and again, let us be clear about this because of the innocent owner issue, they may be accused not of doing anything wrong, but of not sufficiently working to stop someone else. The someone else may be a very dangerous person. So one of the things we need to calibrate here is that if other armed people, dangerous people, bad people are doing something wrong and someone knows about it, and maybe they are using their property, you have to calibrate how much risk you have to take to stop it. You may be accused of not having done enough because you may have tried to do something anonymously, and you may not have wanted to acknowledge that.

Mr. FRANK of Massachusetts. I yield to the gentleman from Arkansas.

Mr. FRANK of Massachusetts. I understand that. The gentleman is correct. One can only further terrify this unsophisticated and impoverished individual whose property you have taken, and you cannot use that in certain circumstances. Again, I want to go back to where I was. We are talking about someone here who is not even accused of a crime. We are talking about someone who is accused of not having been sufficiently enterprising in stopping someone else who may have been a very dangerous person or persons from committing a crime. The person who failed to be enough of an aggressive stopper has property taken. And because that property is taken, and this individual now has to prove that he or she is innocent to get the property back, the person who is accused of not having been vigorous enough in stopping a crime has his or her property taken. He or she then has to prove that they were innocent and that they really did try to stop it to get the property back. And they cannot afford a lawyer, and probably because the property which they maybe would have used to pay a lawyer has been seized and is held by the government, to get the property back, first of all they have to prove that the property that was seized is worth enough compared to what a lawyer might cost. That seems to me outrageous. Secondly, they can then be questioned by the people who seized their property. So they set up this extraordinarily intimidating situation and say, do not worry, we took your property because we did not think you worked hard enough to stop somebody dangerous from doing something bad, and we know you cannot afford a lawyer. Maybe we will appoint you a lawyer, but first, the people who took your property are going to question you about things. But do not worry, they will not use it against you. That is a statement that is less likely to be believed, and we can in fact chill people out of the effective exercise of their rights.