Barney Frank

Mr. FRANK of Massachusetts

Mr. FRANK of Massachusetts. Mr. Speaker, I thank our friend from American Samoa for stepping in when the Committee on the Judiciary was, on our side, temporarily absent. I appreciate his doing this and yielding me this time. Mr. Speaker, I am not going to oppose this bill. I am not going to support it very enthusiastically, but I do not expect my lack of enthusiasm seriously to disturb anybody at this point. But I do take the floor to make the point that I am disappointed that we are making so little progress on the reform of the prison industry system. We have a paradox in this country. We have strong laws against the importation of goods that are made by prison labor overseas, and many of the Members who are concerned about human rights point to prison labor as an example of a violation of human rights. But for some reason that principle appears to dissolve when it hits salt water. It is a very important principle for us overseas, but for reasons I have not been able to discover, because no one who supports the policy will tell me, we ignore it domestically. We employ prison labor. I am in favor of prisoners being usefully employed. I am in favor of whatever rehabilitative effects come from prison labor. But I do not understand that part of the rehabilitation of prisoners is sending them out to take orders. Prisoners do not do a great deal of marketing. Indeed, there have even been concerns to the extent to which they have been able to do some telemarketing. I say that because I am very much in favor of inmates being given useful work, but it does not seem to me that we should be selling their product in competition with things made by citizens and others working in the free market. The current prison labor system not only sends some things out into competition, but reserves certain areas of that market for prison labor and does not even allow the free market to compete. That seems to me wholly inappropriate. We would object if this was done internationally. An insistence on reforming these sets of rules which lock out free enterprise from the prison labor system in fact unites the National Federation of Independent Businesses and the AFL-CIO. I have worked with the gentleman from Michigan (Mr. Hoekstra), the gentleman from North Carolina (Mr. Coble), and others to try to reform that system. I believe we could have a system in which prisoners are employed, but in which they do not get this competitive advantage over others. Indeed, I believe we should be exploring the extent to which we can have prisoners make things and give them away, donate them to various groups that are insufficiently funded to be in the market. That is, I think there is a demand in day care centers, in homeless shelters and in other places so that furniture, clothing, curtains, things that are made in prison industries could in fact be distributed. I hope we will look at this. Many of us have been frustrated, and I and others have been pushing for a look at this. When this bill came up in committee we raised the issue, and offered an amendment tentatively, and withdrew it because we were assured by the chairman of the subcommittee there would be some progress. The progress has been very slow. I am pleased that we now have a hearing set up for this week on alternatives. There is a bill that the subcommittee chairman has drafted that many of us who have been trying to change the system do not like. We have our own version. I hope that we will, after this hearing, be able to proceed to some committee consideration of this, ultimately getting it to the floor. We are late in the year. I do not have high hopes that we are going to pass a bill this year, but why should this bill be any different? We are not passing a lot of anything this year. On the other hand, I would hope we would get a fair enough start in this process so we could assure people who are concerned that we are serious about that and that, frankly, realistically, early next year we would be dealing on the floor with some legislation. I see the chairman there. Mr. Speaker, I ask the subcommittee chairman, who I see approaching the microphone. I hope he would give me some assurance.

Mr. FRANK of Massachusetts

Mr. FRANK of Massachusetts. I am sorry, the gentlewoman asked one question, teacher. Excuse me, but I answered one question, and then I will talk some more, and she can ask another.

Mr. FRANK of Massachusetts. Because I do want to get to severability. This notion that you cannot have severability, there is a constitutional doubt, I am struck by the number of conversions I am seeing today, first because we have the majority whip who is a born- again constitutionalist. In the 14 years I have known him, he has voted for a number of bills that were found unconstitutional without any hesitation. He has never, in my hearing, defended free speech, but all of a sudden he is a great defender of the constitutionality of free speech and of nonseverability. Let me talk about the telecommunications bill. It was voted out of this Congress in early 1996 with a blatantly unconstitutional provision called the Communications Decency Act, which purported to restrict what adults can say to each other on the Internet even when it wasn't obscene. Over and above obscenity, it said, we may not be indecent to each other. That passed. The Supreme Court struck it down 9-0. Every member of the Supreme Court said, Clarence Thomas, Justice Scalia, this is blatantly unconstitutional. We cannot do it. I guess I must have been absent the day the majority whip, the arbiter of free speech, objected to that. But do you know what, the bill had a severability clause, because if we had done it the way Members here are now advocating, that whole telecommunications bill would have been thrown out, because the telecommunications bill contained a blatantly unconstitutional provision. As you might have inferred from the fact that I am drawing on it at length, I voted against the bill because I knew that it was unconstitutional. However, all the rest voted for it, over 400. I did not do that well in that vote. People who voted for that blatantly unconstitutional provision and then saw it survive because of a severability clause, if they come to us now and say, we are just unable to vote for anything about which there is constitutional doubt, and we must have a nonseverability clause, do not impress me that that is, in fact, what motivates them on this particular bill. We have another problem with this rule, and let me use a technical term to describe this rule, ``cockamamy.'' With this cockamamy rule, my colleagues have more loops and whirls.

Mr. FRANK of Massachusetts. Mr. Chairman, I just said I would yield to the gentlewoman from Kentucky. What was her question?

Mr. FRANK of Massachusetts. Mr. Chairman, I move to strike the requisite number of words. Mr. Chairman, let me begin with the assertion from the gentlewoman from Kentucky that when an individual gives $100,000, or a corporation, to a political party, the candidates do not know who gave that. I would nominate that for the single most astounding thing said on the floor of the House since the gentleman from California (Mr. Dornan) left our premises. No one I know of thinks that that comports with the facts. Of course the candidates are made aware of who gave the soft money. Next, I want to talk about the rule. I do not know if the gentleman from Colorado is still here. He was waxing indignant because people criticized the rule. He said, you know, you come to us, and you ask for amendments, and you ask for amendments, and you ask for amendments; and we say, no, you cannot have this, and, no, you cannot have that, and, no, you cannot have this; and then we make 417 nongermane amendments in order to this bill, and you are ungrateful. As a matter of fact, that is precisely our point. The majority has made it clear, when they want a bill to pass, they restrict amendments unduly. The chairman of the Committee on Rules boasted on this floor that he would not allow any amendment to the defense bill, including one cosponsored by myself and the gentleman from Connecticut that would have allowed a cut in the defense bill. He would not allow one to have us remove our troops in Bosnia, cosponsored by three Democrats and three Republicans. Amendments were kept off the bankruptcy bill. Amendments have been kept off bills. So my colleagues are right, we do point to the glaring difference between a refusal to allow basic important amendments to bills and then loading this down with nongermane amendments. That is clearly a sign of people who do not want to have this bill. Do my colleagues want to know what this rule is and this procedure is? This is filibuster envy. We have people here who may not make it to the Senate on their own, so they will try and change the rules so we can filibuster. I sympathize with my friends who try to get before them. I do not agree with them. But it is a sign of how overwhelmingly opposed the Republican leadership is to letting this bill get decided, that my good friends, men of integrity and women of integrity who worked hard, have to claim as a victory that they are going to let us vote on it in August. That is, I think, a sign of how much they are not for this bill. Mr. Chairman, I want to get to severability, but first I will yield to the gentlewoman from Kentucky.

Mr. FRANK of Massachusetts. Mr. Chairman, what we have here is a procedure whereby the Committee on Rules, which would not allow the amendment of the gentleman from California (Mr. Condit) to the budget, would not allow on the other bill, he would not allow the Senate budget as a budget amendment here, would not allow an amendment on Bosnia, the defense bill, it has allowed nongermane amendments and other amendments. Given the strategy that is being followed of people who want to beat this bill, but do not think they can do it head on, here is what I think we are likely to see: A nonseverability clause, if adopted, will then become the invitation for an unconstitutional amendment. What will happen will be this; here is the scenario: They get a nonseverability clause adopted. Then they come up with an unconstitutional amendment, but one Members are afraid to vote for. If you doubt that, let me remind you that we voted for a Communications Decency Act by over 400 votes that the Supreme Court threw out 9-0. So here is how they help to defeat Shays-Meehan. They adopt, rarely, for only like the fifth time this year it is even considered, a nonseverability clause. Then they use this rule to come up with an overwhelmingly appealing, but dubiously constitutional amendment. They get it put in, and they bring down the whole bill. If we were talking only about Shays-Meehan and there was no chance of an amendment, then I would be less concerned about nonseverability. But you are asking for the right to put in a nonseverability clause and then come up with transparently political amendments which have overwhelming appeal, which Members this close to an election might not want to vote against, and then you would bring down the whole bill. I think nothing could be clearer from the jumping and whooping and leaping that is going on here that people want to do anything but debate Shays-Meehan. It is possible, by the way, that we will at some point adopt something that is in the gray area in the Constitution. That is an appropriate thing to do. That is the way we give the court a chance to test itself. But to tell us with this rule, this travesty of a rule aimed at trying to kill the bill, that we should adopt a nonseverability clause so Members can put an unconstitutional amendment in is asking the bill to commit suicide.

Mr. FRANK of Massachusetts. Mr. Chairman, right now Bernard Schwartz comes to mind. He is the man from Loral. Then the National Education Association, the United Auto Workers. Oh, the Teamsters.

Mr. FRANK of Massachusetts

Mr. FRANK of Massachusetts. Reserving the right to object, Mr. Speaker, just to ask how many nongermane amendments were made in order by the rules that we just filed?

Mr. FRANK of Massachusetts. No nongermane amendments, though?

Mr. FRANK of Massachusetts. The gentlewoman did not yield, I reserved the right to object. Mr. Speaker, I withdraw my reservation of objection.

Mr. FRANK of Massachusetts

Mr. FRANK of Massachusetts. Being recognized on my reservation of objection, Mr. Chairman, does the gentleman plan to yield during that additional 3 minutes?

Mr. FRANK of Massachusetts. Reserving the right to object, Mr. Chairman.

Mr. FRANK of Massachusetts. Then I would be constrained to object. I object, Mr. Chairman.

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

Mr. FRANK of Massachusetts. For the edification of the majority whip: The reason the gentlewoman from Michigan got up before was she and we were under the assumption that the normal procedure would be followed of alternating between the parties. I think a good-faith error was made, but the gentlewoman was not trying to usurp anything. The normal procedure is to alternate between the parties. Through a slip-up that had not happened. The gentlewoman had the reasonable expectation that a Republican, having completed, it would next have gone to her. That is why the gentlewoman did raise that question.

Mr. FRANK of Massachusetts

Mr. FRANK of Massachusetts. Mr. Speaker, would you check and see if the gentleman from Florida (Mr. Hastings) took the campaign finance bill with him on that leave of absence.

Mr. FRANK of Massachusetts. Mr. Speaker, I have a parliamentary inquiry.

Mr. FRANK of Massachusetts

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

Mr. FRANK of Massachusetts. Mr. Chairman, reclaiming my time, first let me say this. I have not spoken about the gentleman's motives. I talked about the gentleman's new-found love of free speech that costs a lot of money. I talked about the procedural inappropriateness of the way of doing this. And my answer is, I am for a Constitution America amendment. I am not for this one as written, as I am rarely on a complicated and sensitive subject for the first draft of anything, precisely because I recognize that the Constitution is an important document. What I would like to see is a subcommittee markup and a committee markup dealing with this set of subjects. I know of no one who is capable of excogitating that and then, without any discussion, without anybody else, bringing it forward. So I am in favor of a constitutional amendment. I also share the overwhelmingly majority of opinion, contrary to the gentleman from Texas, that there is plenty of area left by the Supreme Court in which you can legislate. The gentleman suggested that all these bills were unconstitutional, and no one but him thinks that. He is entitled to the splendid solitude of his constitutional opinion, but I do not think it ought to influence the House.

Mr. FRANK of Massachusetts. Yes. In the Buckley case, that is exactly what they held.

Mr. FRANK of Massachusetts. Oh, I am sorry. I just did not realize the gentleman was taking the seventh inning stretch so early in the evening. What we are talking about here is a recognition that this bill cannot be assailed on its merits, so we have, and here is what they have done: First of all, they bring forward a constitutional amendment that they have not allowed to have a subcommittee markup or a committee markup. It had a hearing over a year ago, but, no, went further on that, and we have not had that process of debate and discussion that refines procedures. If, in fact, people try to bring this to the floor without subcommittee markup, people would be yelling at it. Secondly, the inaccurate claim was made that because you are for a constitutional amendment in a certain area, you must think no legislating is possible. And the gentleman confuses the issue of soft money. Buckley clearly says you can limit contributions. The ban on soft money here is a ban on contributions. Maybe a later Supreme Court might say no to it. I must say also I am further impressed by this. This Congress voted for the Communications Decency Act as part of the Telecommunications Act. It was defeated 9 to 0 in the Supreme Court. By the way, the people of constitutional knowledge who were surprised that the Supreme Court did that was quite slender. That did not stop Members from voting against it. That is another new-found trait of the gentleman from Texas. He is now determined apparently never to vote for anything that would be unconstitutional. Maybe we could make that retroactive and he could go back into the record, because I am willing to point out to him areas where he has done just that. So I do not think the gentleman as a defender of free speech comes with quite as much experience as he may bring to other issues.

Mr. FRANK of Massachusetts. That statement is, of course, nonsense. The argument that if the Shays-Meehan bill was constitutional we would not need the amendment, is simply not true. It is, of course, often the case that you will be for a bill that takes you to the limits of what is now constitutionally possible and later for an amendment, and I would give a specific example: soft money. I would like the gentleman to tell me, because the Supreme Court did say in the Buckley case that we can ban contributions, soft money contributions, not expenditures, would the gentleman tell me out of his great store of constitutional knowledge, recently acquired, what Supreme Court decision says that soft money ban would be unconstitutional?

Mr. FRANK of Massachusetts. Subject to correction by the constitutional authorities, I would say yes.

Mr. FRANK of Massachusetts. Mr. Chairman, reclaiming my time, yes. As my friend from California, who teaches constitutional law, among other things, at the time when he still had a day job, knows, there is a complex set of opinions, and some things are allowed and some are not, and there is also a gray area, and some of us think that what has clearly been banned from regulating should be expanded. But no one, except apparently the gentleman from Texas, thinks that the current constitutional doctrine makes all of this unconstitutional. Everyone recognizes that there is an area of regulation, and I believe that the gentleman from Connecticut and the gentleman from Massachusetts have together come up with a bill that has enough appeal within what is constitutionally possible, so the gentleman from Texas's first reaction, he said, was to block the bill from coming to the floor; the second reaction was to come up with the most bizarre rule which is designed, in fact, to prevent anything from ever coming forward; and the third to inaccurately claim it is unconstitutional. I will repeat as I close and say I think we should do a constitutional amendment. It should be done in the normal way of a subcommittee and committee markup. But none of that means that the Shays-Meehan bill, particularly in some of its core provisions, like limiting soft money, is remotely arguably unconstitutional.

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