Barney Frank

Mr. FRANK of Massachusetts

Mr. FRANK of Massachusetts. Mr. Chairman, I seek no quid pro quo, so I do not think it is harassment because I am not the gentleman's supervisor. I would say to the gentleman that I appreciate his talking about the relevance of respecting the wishes of millions of California voters in a referendum. I hope when the resolution condemning those same voters for voting for medical marijuana comes up that the respect that the gentleman is now showing for those California voters does not evaporate as rapidly as I fear it might.

Mr. FRANK of Massachusetts. Mr. Chairman, I seek no quid pro quo, so I do not think it is harassment.

Mr. FRANK of Massachusetts. Mr. Chairman, I ask the gentleman to yield.

Mr. FRANK of Massachusetts. Mr. Chairman, I thank the gentleman for yielding to me. I would say, as our friend from North Carolina had reminded us, the original reason for a three-judge court in the voting rights case had to do with the unfortunate history of judges in the South, who did not really believe in it. I do not think that there was need for it any further, and I would not insist on maintaining it. I would say with regard to the substance of what the gentleman said, I understand his argument that there is something special about a referendum. But the California Republican Party filed a lawsuit directly contradicting that. I would ask the gentleman, do the California Republicans, who serve on the Committee on the Judiciary, have they talked to the California Republican Party and tried to enlighten them and correct this error, which they have so strongly propagated?

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

Mr. FRANK of Massachusetts. Mr. Chairman, I thank the gentleman, because my good friend from Illinois and I do not always agree on the definition of virtue, so I am glad we do in this case.

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

Mr. FRANK of Massachusetts. Mr. Chairman, I yield myself such time as I may consume. Let me say, I appreciate the gentleman making the request. Because even though it cannot be acted on until the 5-minute rule begins, Members who may be interested should know it is our intention to have amendments be in order at any point so they do not have to worry about a section-by-section reading. I do not believe we have a large number of amendments. Mr. Chairman, the Subcommittee on Courts and Intellectual Property, on which I am pleased to serve with the gentleman from North Carolina (Mr. Coble), has a good deal of business which we do in a nonideological way and in a nonpartisan way, and I am very proud of that. The intellectual property jurisdiction we have is an important one, and we have had some judicial reform bills. This bill does not, however, conform to that pattern. This is an exception in that it is one on which I think we have some fairly sharp division, and the reason we have the division I think frankly stems from some frustration on the part of some of those on the other side. There are people particularly in the very conservative wing of the Republican party, which I must say has outgrown wing status. It is now at least a wing and a tail and maybe another wing and a couple of beaks. They do not like some of the things that the courts do. I believe that their problem, however, is not so much with the courts as with the Constitution. And there is not a great deal we can do about the Constitution. We try. We recently have sought on the floor, at least some have sought on the floor, to amend the Constitution with great regularity and with equal lack of success. The Congress has voted down half a dozen or more efforts to change the Constitution. Not being able to change the Constitution, the people in the conservative wing of the Republican party have decided to demonize it instead and to denounce the judges. But there is a great disconnect between the violence of the rhetoric and the actuality of the legislation. I am going to vote against this bill. I am glad that the President plans to veto it if we pass it as-is, although we could make it passable under some aspects of the bill which I think are very useful. But even if it were to pass, it would have virtually no effect on the kinds of things that people complain of. In fact, one of the most interesting facts is that, while people on the conservative side complain about this bill because they say it empowers an inappropriate form of judicial activism, it is very clear if we study this that they simply do not like the results. They simply do not like courts finding that this or that statute might not be permissible under the Constitution. Because if we look at the judges who have been judicial activists, what we find, of course, is that the most conservative justices of the Supreme Court, for example, are also the most judicially active. Justices Scalia and Thomas, the two most conservative justices, strongly supported by the conservatives, have in fact voted to invalidate more statutes, to find more acts of Congress unconstitutional than their more moderate and liberal counterparts. If in fact they think it is a terrible idea for the Supreme Court to strike down statutes, then they would be very critical of Mr. Scalia and Mr. Thomas, the Religious Freedom Restoration Act that they did not like, the Brady Bill, parts of which they did not like. There are a whole series of them. And the conservative justices are in league. One of the most glaring examples of this came recently with regard to a series of decisions in California where judges in California found referenda unconstitutional. Now, in a couple of cases, at least in one case, a district judge found the referendum unconstitutional under affirmative action. That district judge was promptly overruled. No harm was done to the cause of the people who were against it. We went through the regular procedure. And if we listen to my Republican friends, we might get the impression that they do not like the idea of a Federal judge invalidating a popular referendum. But if we got that idea, Mr. Chairman, we would be wrong. Sometimes in an excess of their concern over a particular case, my friends on the other side overstate their allegiance to general principles. Because, in fact, when the people on the Republican Party do not like the result of a referendum, what do they do? Well, in California, they go to court and they ask a single district judge to invalidate it. Indeed, it seems to me clear that, with regard to judicial activism, my friends on the other side have essentially the same position with regards to States' rights. They are against it except when they like it. They are prepared to denounce it when it produces a result they do not like. But when it gets in the way of a result they like, then they ignore it. That is where they are on States' rights, and that is a perfectly valid viewpoint. That is, it is valid to be result-oriented. It is valid to say, I am going to hope for the right decision. What is not intellectually valid, it seems to me, is to assert adherence to a principle to which one does not, in fact, adhere. And when we talk about States' rights but are prepared to disregard States' rights and talk reform and criminal procedure and economic regulation and consumer protection, then we really forfeit our rights to talk about States' rights. And when we denounce judicial activism but Honor Justices Scalia and Thomas, our two most active justices, then it seems to me we undercut our argument. And with regard to the notion that somehow it is a terrible thing for a district court judge to invalidate a popular referendum, let me read a refutation of that view. I am reading from a legal brief. The blanket primary is not valid because it apparently was passed by a majority of Democrats and Republicans who voted in the 1996 election. Voters cannot validly enact a law which conflicts with parties' rules governing the nomination of candidates and infringes their first amendment rights any more than can a legislature. Let me read that again correctly. ``Voters cannot validly enact a law which conflicts with parties' rules governing the nomination of candidates and infringes their first amendment rights any more anymore than a legislature.'' Let me also now read. ``Even if the electorate could enact statutes to regulate the selection of nominees for partisan offices, it cannot do so in a way that undermines the integrity of the electoral process.'' And then quoting with approval another decision, ``Voters may no more violate the Constitution by enacting a ballot measure than a legislative body may do so by enacting legislation. A court must undertake the same constitutional analysis of laws passed by initiative as by a legislature. There is little significance to the fact that a law was adopted by a popular vote rather than as an act of the State legislature. Indeed, there are substantial reasons for according deference to legislative enactments that do not exist with respect to proposals adopted by initiative.'' And that is a quote again from another decision. Now, where do these arguments in favor of allowing a single Federal district judge to invalidate a referendum of the people of California if it was unconstitutional come from? What radical group, what group of anti-public elitists, what sneering left-wingers, unwilling to let the people decide, put this forward? Who says that, in fact, the legislative enactment might even get more deference from a court than the people? Who are these judicial activist encouragers who so sneer at the public? They are the California Republican Party. I am quoting from the brief filed by the California Republican Party, Michael Schroeder, Shawn Steel, and Donna Shalansky. Not that Shalala. Donna Shalansky. It was filed July 28, 1997. Because the people of California dared to pass a referendum changing the way candidates are nominated for office which the Republican and Democratic Parties of California did not like. So the Republican Party of California went to court with the Democratic Party of California and said, judge, you make those people stop violating my constitutional rights. And they wrote down here that just because the people did it in a referendum does not mean anything. In fact, it may mean it is even less entitled to respect than when the people do it. Of course, we have a bill on the floor that does exactly the opposite. We have a bill on the floor that says that, if a referendum is involved, we have to have a three-judge court. It just seems to me, Mr. Chairman, that there ought to be some limit to the extent to which a gap is allowed to exist between what people say they truly believe and what they do when it is important to them. So what we have here is a cry of frustration. We have the right wing not liking the fact that the court sometimes enforces constitutional rights. So they talk about all the doctrines which they, it does not seem to me, follow themselves when they are inconvenient. So they come forward with a bill which is mostly a nuisance and interference and a derogation from the efficiency of our Court system. We will be offering some amendments to try to clear that up. And absent the passage of those amendments, I hope the bill is defeated. Mr. Chairman, I reserve the balance of my time.

Mr. FRANK of Massachusetts. Mr. Speaker, if the gentleman will continue to yield, I thank the gentleman. I thought I would help him because he seems to be in no great hurry. We are not waiting for the Speaker to come back from Florida again, are we, like yesterday?

Mr. FRANK of Massachusetts. Mr. Speaker, I will be managing the bill on our side. I think Members will have general debate. There will be an hour of general debate that is not going to be overfilled with requests for time. I think they can be accommodated.

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

Mr. FRANK of Massachusetts. No, because the gentleman is wrong in the description of his amendment. In the first place, there are nonviolent felons other than drug dealers. There are people who committed insurance fraud; there are people who cheated on their taxes, their State taxes. I do not say that under no circumstances should they be released because I think they are not the kind of danger that we are talking about to the community in the near term. The gentleman talked about murderers and rapists, but it includes nonviolent felons.

Mr. FRANK of Massachusetts. We do not serve the cause of justice by confusing unhappiness with particular judges and particular decisions with the functions of the judiciary. The gentleman is making a valiant effort to protect that function. I hope that in some other context those efforts are more successful. I regret, although I understand fully, the situation in which he found himself, that we will not be able to vote on it now. I will say, as an aside, this does make it an easier decision for me because, had the gentleman offered the amendment and had it been succeeded, I would have been conflicted, but now I can vote against what I think is kind of a silly bill without any problem. Amendment Offered By Mr. Conyers

Mr. FRANK of Massachusetts. Mr. Chairman, if the gentleman will continue to yield, we may wind up invoking that great quote from Edward G. Robinson in the civil situation, ``is this the end of RICO?''

Mr. FRANK of Massachusetts. I would just note that the gentleman never agrees with the Judicial Conference.

Mr. FRANK of Massachusetts. Except now.

Mr. FRANK of Massachusetts. Mr. Chairman, I move to strike the requisite number of words. Mr. Chairman, as it has been said that patriotism is sometimes the last refuge of scoundrels, invocation of the Judicial Conference is the last refuge of my friend from Florida. He is rarely to be found on the same side of an issue as the Judicial Conference, he is rarely to be found on the same side of the hemisphere as the Judicial Conference, and when the gentleman from Florida invokes the Judicial Conference it is a simple affirmation of the principle that nature abhors a vacuum. Into the vacuum of arguments that my friend had rushes a reference to the Judicial Conference. The fact that he who ordinarily disagrees with it invokes it shows this is a pretty good idea. Not only is it a pretty good idea, but it is one that is hard to object to. The gentleman's amendment is quite moderate, the gentleman from Colorado. It says if a judge decides there is a compelling reason not to make this public, the judge can do that. But the rule ought to be, the assumption ought to be that the public will know about public business. I am surprised, frankly, at some of my conservative friends. Conservatives have traditionally distrusted the executive. For them to be not wanting to require the executive to make clear the terms of any settlement which in the nature of the case would exclude the legislative body but be an executive decision surprises me. So I rise in support of the amendment. Mr. Chairman, I yield to the gentleman from Colorado (Mr. Skaggs) the author of the amendment.

Mr. FRANK of Massachusetts. Mr. Chairman, I move to strike the last word. Mr. Chairman, we will now find out if on the Republican side sauce for the goose is sauce for the gander. I opposed an amendment that was offered before by the gentleman from California that would have created a brand-new privilege, a parent- child privilege, not on the grounds that it was an unthinkable idea but that dealing with a subject of that complexity and that impact for the first time on the floor of the House without having gone through any of our procedure was not a good idea. The majority agreed with me. I make the same argument here. Actually, this is not so much an amendment as it is a periodical. I have gotten four versions of it. I understand that. I am holding all four versions. First, it said earlier today it would only apply if the defendant was not primarily engaged in a profit-seeking purpose. Then we got profit- seeking purpose or committed bodily injury. Then we got, we struck bodily injury, and we got criminal offense. Then we got a conforming amendment. I do not criticize the drafters. They are doing a very good job, but this is a work in progress. We have gotten four versions of it because they are trying to deal with a complex subject. I understand that this is a response to a decision that was just made, but let me make a point that I thought was clear. You run the place. You control the committees. You could schedule a hearing next week. You could schedule a markup the week after. You can bring the bill to the floor. Do not work in such haste on this issue. Now, Members quoted Professor Blakey as saying that the RICO statute goes too far. Many of us agree. But do my colleagues know it does not just go too far for nonprofits. There are profit-making entities that have been unfairly dealt with under RICO. You leave them alone, because my colleague from California did not like what Kenneth Starr did with regard to Monica Lewinsky and her mother, and came in with a bill right to the floor of the House. My colleagues here do not like what a court did with regard to a right-to- life group, and they come right to the floor of the House. This is not a place for instant therapy. If you do not like something you read in the paper, please do not come right up with an amendment. Let us use the procedures. I agree in both cases; legislative action is appropriate, but not right away; not version four of the amendment. Let us have a hearing and a markup, and let us not say that we are only going to protect nonprofits. If you vote for this amendment, are you then going to tell people that as far as profit-making entities are concerned, RICO does not go too far?

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

Mr. FRANK of Massachusetts

Mr. FRANK of Massachusetts. Mr. Speaker, I am impressed by the gentleman's renewal of the Louisiana/Vermont alliance. Not since the war of 1812 has it been so vigorous, but I think it is wrong this time. The gentleman from Vermont talked about the Asian bailout as if it was all about Chase Manhattan Bank. I happen to thank that Kim Tae- chung, the President of South Korea, is one of the great, small d, democratic heroes of our era. I will guarantee to my colleagues that, if asked, he would express his appreciation for the role of the IMF. This is a very courageous democrat, a man who risked his life for democracy. He was elected president. He is working with the unions. He is working to try and help his country. The IMF is very important to him. We have a thug like Soeharto, and we are working to try and change IMF policies there. That is why this particular amendment is such a good one. People have said, well, we should have debated this. Fine by me, but I have not been in control of the committee that kept it off the floor. We had a long debate and hearing in the Committee on Banking and Financial Services. This should have been on the floor before. We cannot keep it off the floor and then claim the benefit of it having been kept off the floor. We cannot shoot our parent and plead we are an orphan and ask for mercy. The people who controlled the House decided to keep it off the floor. That is why we are dealing with it now. It has been talked about a great deal. This is a version of it that reflects the importance of it to places like South Korea and to Thailand which are trying hard to make improvements. It reflects the need for labor standards. We explicitly here, by the way, included strong protections for the agricultural sector of our economy. The bill was explicitly amended to recognize that. This is not a perfect world. It is not a perfect institution or a perfect bill. It is as good an effort as we were able collegially to put together, working with agriculture and labor and others, to provide more funds. It is true, it is not absolutely necessary now, but I will tell my colleagues this: If, in fact, we know that the House is never going to vote for the IMF, then maybe we ought to buy some Korean and Thai currency and sell it short. Because it is going to have a negative effect if we walk away from this on decent, struggling governments from South Korea and Thailand that deserve some support. It is also in our own self-interest to support them.

Mr. FRANK of Massachusetts

Mr. FRANK of Massachusetts. Well, who will tell the Chair what judgment to make, Mr. Speaker?

Mr. FRANK of Massachusetts. Parliamentary inquiry, Mr. Speaker.

Mr. FRANK of Massachusetts. Mr. Speaker, I just want to summarize, to say I understand particularly that the conservative wing of the Republican party has been dissatisfied lately. They used to be dissatisfied with the Democrats, they were dissatisfied with the President. Now they are dissatisfied with their leadership, and I think they are beginning to show dissatisfaction with the American people. The American people are not quite as willing as they are to see the government dismantled. Yes, people have criticisms of the government in general, but the people show more support for particular programs than is popular with some over there. That is why the gentleman from Pennsylvania talked witheringly about the people being bought off and locking these in, and I say to my friends on the other side, the response when they think the majority is no longer as supportive of their philosophy as they once were is to try to talk them back into being on their side. It is not to change the rules so that the country becomes structurally less democratic than it was the day before. Parliamentary Inquiry

Mr. FRANK of Massachusetts. Why do all my colleagues keep saying that?

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