Barney Frank

Mr. FRANK of Massachusetts

Mr. FRANK of Massachusetts. I thank the gentleman. I again want to stress that. Because from any angle you look at it, the affirmative action issue is not part of this. The President is not seeking it. This executive order does not trigger it automatically. Advocates of nondiscrimination in the sexual orientation context oppose affirmative action, and most tellingly, as the gentleman from California has said, it is indeed precisely those who are most critical of affirmative action who insist that you can have a nondiscrimination policy without affirmative action. That is what this is. Those who argue that articulating a nondiscrimination policy automatically engender affirmative action are undercutting the anti- affirmative action argument because they are then saying, and I never know what the converse or the reverse or the adverse is, but the opposite. They are then saying that if you have one, you have to have the other. Those who want to kill affirmative action are bound to argue that you may have nondiscrimination without affirmative action. The other thing is, I do want to thank the gentleman from Arizona for bringing up this so we can once again vote on the federalism order. The gentleman from Florida did it first. So we have already had a unanimous House vote to kill the executive order on federalism, then the President suspended it, then he withdrew it, now we are going to vote against it again. We are killing a dead man that committed suicide before he was born. This executive order on federalism if it was a cat it would be dead, because it is going to be killed about nine times. Parliamentary Inquiry

Mr. FRANK of Massachusetts. I thank the gentleman. I did take my time now because I wanted the gentleman to complete this very important statement. And he is right. Some of us do differ on the role of affirmative action with regard to race and gender. But I know of no advocate of affirmative action with regard to sexual orientation nor, by the way, with religion and age, and I cite that because this particular executive order, which is going to be the subject of a later amendment, deals not just with race and gender but with religion and age and it has never given rise to affirmative action. The notion that because a category is in this executive order it will lead to affirmative action is belied by the fact that over many, many years no one has ever seen an affirmative action, an affirmative outreach, an affirmative anything program with regard to many of the categories covered. The President has specifically disavowed any intention of affirmative action with regard to sexual orientation, and as one of the drafters of the Employment Nondiscrimination Act dealing with sexual orientation, I would alert Members to read that. It again specifically disavows affirmative action. We are not arguing for affirmative action in that context. I think the gentleman from California, and I would be glad to yield him again, has made a very important point. Those of us who have a disagreement about affirmative action have it with regard to race and with gender, but no one is an advocate of it being used here. And in no case, let me just close with this, in no case have State laws on this subject given rise to affirmative action based on sexual orientation. That is a nonissue. I yield to the gentleman from California.

Mr. FRANK of Massachusetts. Mr. Chairman, I move to strike the requisite number of words, and I yield to the gentleman from California.

Mr. FRANK of Massachusetts

Mr. FRANK of Massachusetts. Mr. Chairman, I yield 1\1/2\ minutes to the gentleman from Georgia (Mr. Lewis) in the interest of fairness.

Mr. FRANK of Massachusetts. Mr. Chairman, I yield myself 15 seconds. Mr. Chairman, first, I must say, with all regret to my friend, the gentleman from Texas (Mr. DeLay), probably no more hugs for awhile. Secondly, the President has explicitly disavowed any intention of this leading to this kind of inquiry based on sexual orientation. Under the existing executive order, it covers religion, it covers AIDS. There have been no such inquiries. Mr. Chairman, I yield 1\1/2\ minutes to the gentleman from North Carolina (Mr. Hefner).

Mr. FRANK of Massachusetts. Mr. Chairman, I yield 1 minute to the gentlewoman from Maryland (Mrs. Morella). (Mrs. MORELLA asked and was given permission to revise and extend her remarks.)

Mr. FRANK of Massachusetts. Mr. Chairman, I yield 1 minute to the gentleman from Colorado (Mr. Skaggs).

Mr. FRANK of Massachusetts. Point of order, Mr. Chairman. The gentleman does not have to yield. It is up to the gentleman with the microphone to yield for a parliamentary inquiry.

Mr. FRANK of Massachusetts. Mr. Chairman, the gentleman has not yielded for a parliamentary inquiry.

Mr. FRANK of Massachusetts. Mr. Chairman, I yield the remaining time to the gentleman from California (Mr. Campbell), a constitutional scholar who opposes discrimination and also opposes affirmative action and will point out the difference as embodied in this executive order.

Mr. FRANK of Massachusetts. Mr. Chairman, I yield such time as he may consume to the gentleman from California (Mr. Miller). (Mr. MILLER of California asked and was given permission to revise and extend his remarks.)

Mr. FRANK of Massachusetts. Mr. Chairman, I yield such time as he may consume to the gentleman from Oregon (Mr. Blumenauer). (Mr. BLUMENAUER asked and was given permission to revise and extend his remarks.)

Mr. FRANK of Massachusetts. Mr. Chairman, I yield such time as she may consume to the gentlewoman from Texas (Ms. Jackson-Lee). (Ms. JACKSON-LEE of Texas asked and was given permission to revise and extend her remarks.)

Mr. FRANK of Massachusetts. Mr. Chairman, I yield such time as he may consume to the gentleman from Ohio (Mr. Kucinich). (Mr. KUCINICH asked and was given permission to revise and extend his remarks.)

Mr. FRANK of Massachusetts. Mr. Chairman, I yield such time as he may consume to the gentleman from Florida (Mr. Deutsch). (Mr. DEUTSCH asked and was given permission to revise and extend his remarks.)

Mr. FRANK of Massachusetts. Mr. Chairman, I yield such time as he may consume to the gentleman from Virginia (Mr. Moran). (Mr. Moran of Virginia asked and was given permission to revise and extend his remarks.)

Mr. FRANK of Massachusetts. Mr. Chairman, I yield 2\1/4\ minutes to the gentleman from California (Mr. Rohrabacher).

Mr. FRANK of Massachusetts. Mr. Chairman, I rise in opposition and claim the 10 minutes in opposition.

Mr. FRANK of Massachusetts

Mr. FRANK of Massachusetts. Madam Speaker, I yield myself such time as I may consume. Madam Speaker, I had intended to stick to the merits, but I did want to respond to the ranking member of the Committee on Commerce. Unfortunately, the public got a look at some of the turf battles that I do not think serve us very well. The gentleman made some reference to comity. I do not know how that was spelled. But had the gentleman wanted me to yield him some time, I would have been glad to do it. I did not, because I had not been instructed by the ranking member of my full committee to split the time in terms of control. But I am glad to yield time to anyone who wants. Indeed, I yielded four minutes right away to the gentleman from Virginia. Now, the gentleman serves on both the Committee on the Judiciary and the Committee on Commerce, but he used his four minutes for a tribute to the work of the Committee on Commerce that was lyrical in its composition, and I am sure will go down in the annals as one of the best tributes to a committee ever given. So, at this point I would reserve the balance of my time, but if Members want to speak, I would be glad to yield them time.

Mr. FRANK of Massachusetts. Madam Speaker, I yield three minutes to the gentleman from California (Mr. Berman).

Mr. FRANK of Massachusetts. Madam Speaker, I yield 4 minutes to the gentleman from Virginia (Mr. Boucher). (Mr. BOUCHER asked and was given permission to revise and extend his remarks.)

Mr. FRANK of Massachusetts. Madam Speaker, I yield myself such time as I may consume. Madam Speaker, I first want to note that this is a matter that the Committee on the Judiciary has been working on for some time. It then went, under our rules, to the Committee on Commerce. Both committees and indeed both parties in both committees bring this bill forward. I note that because people who have been unduly addicted to the media would not, I think, have an understanding of what has been happening. We have here some very complex issues dealing with the economy and how we adapt some fundamental principles, intellectual property principles which are very important to us, to modern technology. There were some sharp disagreements. There were some conflicting and competing values, as is often the case. What has happened is for a period of some time, first in the Committee on the Judiciary and then in the Committee on Commerce, people have worked on this and come up with what I believe is a very good set of solutions. I note that because I do think the public is entitled to know that the portrayals of the Congress in general, the Committee on the Judiciary in particular as somehow the set of a Three Stooges movie or the scene of ferocious battles simply is not true. One of the problems we have today is that there is an inattention on the part of our friends in the media to what is the actual business of this place. I think it is important for people to understand. These are very serious issues that had to be dealt with, conflicting values. For example, many of us feel very strongly on the need to protect intellectual property. If we do not see that authors and composers and singers and musicians and other creative people are rewarded for their work, not only is that unfair, to many of us, but the amount of work we get will diminish. There may be some people fortunate enough to be able to create out of love without regard to compensation. We cannot depend only on the independently wealthy to be our creative people. It is important for us as a vibrant society to sustain that, and one way to sustain that is to recognize the property that people have in the product of their intellectual labors, their creative intellectual labors. That was, to some extent, threatened by modern technology, by technological change which makes it easier for that minority of people who do not respect others' intellectual property to steal it because of the collection of technology we now use, the short end of the Internet. What we wanted to do was to come up with ways to adapt the protection of intellectual property to a modern technological era without unduly diminishing people's rights to enjoy things. We do not want to prevent the public from having the enjoyment of these products. Madam Speaker, I have one thing that bothered me in particular, and I am pleased that this bill addresses it in a reasonable way because there was no guarantee that it would. One of the things we do here is to say: ``If you are an on-line service provider, if you are responsible for the production of all of this out to the public, you will not be held automatically responsible if someone misuses the electronic airway you provide to steal other people's property. There is a balance here. We want to protect property, but we do not want to deter people from making this widely available. We have a problem here of making sure that intellectual property is protected, but we do not want freedom of expression impinged upon. Madam Speaker, I found that particularly important for this reason, and I think this is a point that I want very much to stress: We live in as free a society from the standpoint of expression as I believe has ever existed in the world. The level of freedom of expression which Americans enjoy is very, very profound, and that is very important to us. The problem is we have had two doctrines of freedom of expression. We have had one which covered all speech and written speech, newspapers, magazines, theater, billboards; that has been very free. Beginning in the 1930s when radio came to play, we started a new form of speech, and that was speech electronically transmitted. And because we started with a limited spectrum, because we started with physical limitations on the amount of speech that could go out, we began with electronically-communicated speech in the 1930s to develop a parallel doctrine which gave less protection to speech electronically transmitted. Over time we had a tradition of constitutionally very protected speech, and then speech transmitted electronically that was less protected. The problem here is that as this society goes forward, an increasingly high percentage of what we say to each other will be electronically transmitted through E-mail and through other ways. It seems to me important for us to reverse this notion that electronically-transmitted speech is entitled to a lesser degree of protection in the area of freedom of expression than all other forms of speech or we will be, 30 years from now, a less free society. That has application to legislation of various kinds, and we will deal with that in another context. But one of the things that was a potential danger here was that by protecting intellectual property, a very important job, we would have imposed on the on-line service providers such a degree of liability as, in fact, to diminish to some extent the freedom they felt in presenting things. What I am most happy about in this bill is I think we have hit about the right balance. We have hit a balance which fully protects intellectual property, which is essential to the creative life of America, to the quality of our life, because if we do not protect the creators, there will be less creation. But at the same time we have done this in a way that will not give to the people in the business of running the on-line service entities and running Internet, it will not give them either an incentive or an excuse to censor. No bill is perfect. There are some tensions here. This will go to conference, and then there will be room for some further changes. But for achieving that essential balance I am very pleased, and I want to note again the two committees of this House and the parties represented in both committees worked very closely together to bring forward legislation without rancor, without partisanship, in fact serving very well the needs of this country. Madam Speaker, I reserve the balance of the time.

Mr. FRANK of Massachusetts

Mr. FRANK of Massachusetts. Mr. Chairman, I am glad I got that off my chest.

Mr. FRANK of Massachusetts. Mr. Chairman, I move to strike the requisite number of words, and I yield to the gentleman from Massachusetts (Mr. Delahunt).

Mr. FRANK of Massachusetts. Mr. Chairman, I yield to the gentleman from Virginia (Mr. Scott).