Barney Frank

Mr. FRANK of Massachusetts

Mr. FRANK of Massachusetts. Mr. Chairman, I yield 2 minutes and 15 seconds to the gentlewoman from Michigan [Ms. Rivers].

Mr. FRANK of Massachusetts. Mr. Chairman, I yield 2 minutes, 45 seconds, to the gentleman from New York [Mr. Nadler].

Mr. FRANK of Massachusetts. Mr. Chairman, I yield myself such time as I may consume. Mr. Chairman, let me say I welcome the gentleman's support for the principle that the States should be able to work this out. When I offer an amendment tomorrow that would strike the part of the bill that would prevent the State from fully doing that, I will look for his support. But consistency might evaporate overnight. Mr. Chairman, I yield 2 minutes to the gentleman from California [Mr. Farr].

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

Mr. FRANK of Massachusetts. Mr. Chairman, I thank my friend for yielding to me. We are in a great debate. I would hope that people reading the Congressional Record, watching this debate, would compare the tone, the sensitivity, and the reaching out of my friend's words, and then read the earlier words of the gentleman from Oklahoma, the words which were denunciatory and denigratory of the gentleman from Massachusetts and myself, and I would hope that people would compare the spirit of the approach, compare the attitude toward others, compare the way in which things are debated. I would say, as someone who has been included in this denunciatory rhetoric, that I would be very satisfied to have people in forming their judgment listen to the words uttered by the gentleman from Oklahoma, and listen to the words of my friend, the gentleman from Massachusetts. I think we are helping people form a basis. This notion that a loving relationship between two people of the same sex threatens relationships between two people of the opposite sex, that is what denigrates heterosexual marriage. The argument that we have denigrated marriage or the institution of marriage or any other formulation says that two people loving each other somehow threatens heterosexual marriage. That is what denigrates heterosexual marriage. I thank the gentleman for yielding.

Mr. FRANK of Massachusetts. Mr. Chairman, I yield myself such time as I may consume. Mr. Chairman, let me just exercise my objection to the way this House is being run. If this is such an important issue, why are we debating this at a quarter to 1? I must say that for an important piece of legislation like this to be treated in this fashion is quite shabby. Mr. Chairman, I yield 2 minutes to the gentleman from Rhode Island [Mr. Kennedy].

Mr. FRANK of Massachusetts

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

Mr. FRANK of Massachusetts. Mr. Chairman, will the gentleman yield 15 seconds to me?

Mr. FRANK of Massachusetts. Mr. Chairman, as the gentleman knows, we can do a lot. I mean we could have gone to the Committee on Rules. I have seen broader gaps created by the Committee on Rules to allow legislation than this one. So I know the gentleman is sincere, but I would hope, and my colleague knows that the conference committees can do a lot, so I would hope out of a sense of decency the gentleman would follow through and that we would, in fact, substitute a sanction before this bill is through.

Mr. FRANK of Massachusetts

Mr. FRANK of Massachusetts. Mr. Speaker, I understand why no Member on the other side agreed to yield. We have a tradition around here of yielding. But when your arguments are as thin as theirs, you do not risk rebuttal. Let us talk about the points here. First of all, we are told that this is not political. Now, people may understand why we do not speak here under oath. No one in the world believes that this is not political. We are told we must do this because the Hawaii Supreme Court is threatening them. The Hawaii Supreme Court decision in question came in 1993. The process in Hawaii, which is now still going on, does not end until, at the earliest, in late 1997 and probably 1998. There is a trial that has to take place that has not even started. Why, when the decision came in 1993 and the process will not end until 1997 or 1998, are we doing this 3 months before the election? Oh, it is not political, sure. Second, there is a very false premise, the notion that this is to protect States from having to do what Hawaii does. Every Member on the other side who sponsored this bill believes that that part is unnecessary. Every Member believes that the States already have that right. What is being protected here is not the right of States to make their own decision but the right of States to vote Republican in the 1996 Presidential election. We will be told time and again that we have 3 weeks left in this session until August and then we will have a month. We have an enormous amount of undone work. The leadership is talking about abandoning the appropriations process, the Republican leadership, and doing continuing resolutions on issue after issue after issue. We will be told we do not have time to debate it. Why? Because we have to protect America from something that will not happen until 1998. And what are we protecting, as my colleague and friend from Massachusetts has just said? This is the most preposterous assertion of all, that marriage is under attack. I have asked and I have asked and I have asked and I guess I will die, I hope many years from now, unanswered: How does the fact that I love another man and live in a committed relationship with him threaten your marriage? Are your relations with your spouses of such fragility that the fact that I have a committed, loving relationship with another man jeopardizes them? What is attacking you? You have an emotional commitment to another man or another woman. You want to live with that person. You want to commit yourselves legally. I say I do not share that commitment. I do not know why. That is how I was born. That is how I grew up. I find that kind of satisfaction in committing myself and being responsible for another human being who happens to be a man, and this threatens you? My God, what do you do when the lights go out, sit with the covers over your head? Are you that timid? Are you that frightened? I will yield to the gentleman from Oklahoma if he will tell me what threatens his marriage.

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

Mr. FRANK of Massachusetts. Mr. Speaker, whose marriage does it threaten?

Mr. FRANK of Massachusetts

Mr. FRANK of Massachusetts. Mr. Speaker, if the Federal Trade Commission had jurisdiction over our legislative processes, I think that this would probably be cited as a bait and switch proposition. I read the resolution and it consists largely of a number of very good reasons why we should not do favors for and make concessions to and trade on these terms with the Chinese People's Republic. It is a long list of the great grievances which we have against the Chinese People's Republic. Then we come into the last page, in which, having shaken our fist at them and listed all the terrible things we do, we unleash our weapon: Hearings. Now, I appreciate the fact that hearings can sometimes be a nuisance if you are the Secretary of an American Cabinet department. The notion that we are going to have hearings might be a problem. but the threat of hearings in this situation seems to me to be of quite minimal effect on the Chinese. So I would have to say, and I will yield to the gentleman if he would yield me some of his time, because I only have 2 minutes and he had 8 and some odd minutes left, but at this point I would say it does appear to me that any resemblance between this and a serious piece of legislation is entirely coincidental. The notion that the Chinese, having compiled this very long record of violating agreements and abusing people and getting the better of us economically, would really be upset because we are going to have hearings seems to me to be quite minimal. If the gentleman wants to yield some time, I will be glad to have a colloquy with him, but apparently he does not, so I will simply say that this may ease the conscience of those who voted for MFN. If in fact Members agree with everything in this resolution, I do not know how they could have voted to give the Chinese Most-Favored-Nation treatment. There is certainly nothing, I will say in closing, in the behavior, in the record, in the composition of the People's Republic of China that ought to give anybody the slightest inclination to believe that the Chinese will pay any more attention to this than they have anything we ever did before.

Mr. FRANK of Massachusetts

Mr. FRANK of Massachusetts. Mr. Speaker, I voted against the Communications Decency Act, which was included in the telecommunications bill, because it was an outrageous disregard by this body of our duty to protect constitutional rights, specifically the first amendment. Now we have had a ringing thoughtful denunciation of that unconstitutional act by a 3-judge court in Pennsylvania. I commend particularly to Members the opinion by Judge Dalzell, where he points out how unwise it is to try to sensor the Internet. We have a problem. We began years ago, with regard to broadcasting, the notion that if speech was electronically communicated it got less first amendment protection than other speech. That was based on some technological factors involving the limitations of the spectrum. Today, as increasingly people communicate with each other through electronic means, we have carried over this notion that electronically communicated speech gets less first amendment protection than other speech. If we do not reverse that trend, if we do not recognize the wisdom of that 3-judge court, we will find ourselves in future years less protected by that precious right of free speech.

Mr. FRANK of Massachusetts

Mr. FRANK of Massachusetts. Mr. Speaker, when the U.S. Supreme Court upheld the decision of the Colorado Supreme Court invalidating a Colorado law which put gay men and lesbians at a particular disadvantage with regard to antidiscrimination legislation, a number of people on the right responded with stirring denunciations of the Supreme Court majority. And Justice Scalia wrote an angry and poorly reasoned dissent in which he denounced the majority and misrepresented their decision. I was therefore particularly pleased to read a thoughtful, reasoned defense of the Supreme Court majority opinion which upheld the Colorado Supreme Court's rejection of this law as an unconstitutional effort to impose special burdens on lesbians and gay men, written by Clint Bolick. Mr. Bolick is a very prominent advocate of the conservative position on legal issues, and serves as the Litigation Director at the Institute for Justice in Washington. As the printed article notes, the Institute itself has no position on the Supreme Court decision in this case. Mr. Bolick's article is an example of intellectual honesty and integrity because as he notes, he does not favor laws that protect gay men and lesbians against discrimination, but unlike many others--on both sides of the ideological spectrum--he does not allow his public policy preference to cloud his analysis of the underlying legal and constitutional principles that are at stake. Because this is an issue of great importance to the country, and because the Supreme Court majority opinion has been so grievously misrepresented by Justice Scalia and by many Members of this body, I ask that Clint Bolick's very sensible discussion be printed here. [From the Los Angeles Daily Journal, June 4, 1996] ``Romer'' Court Struck a Blow for Individuals Against Government (By Clint Bolick) Reaction to the U.S. Supreme Court's opinion striking down Colorado's Amendment 2 predictably was morally charged: Generally those who disapprove of gay lifestyles reviled it; those who don't liked it. The superficial reaction overlooks the decision's deeper implications, which go far beyond gay rights. For the court may have recognized in the Constitution's equal protection guarantee significant new restraints on majoritarian tyranny. I anticipated the court's ruling in Romer v. Evans with decidedly ambivalent feelings. I hold the classic libertarian position toward gay rights: An individual's sexual orientation is a private matter, and properly outside the scope of governmental concern. But I also cherish freedom of association and believe people should be free to indulge their moral judgments about other people's lifestyles and proclivities, even though I do not share those judgments. The Amendment 2 case presented a libertarian conundrum. On one hand, Colorado municipalities were adopting gay rights ordinances that interfered with freedom of association, adding sexual orientation to other ``protected categories'' such as race and gender on which private discrimination is prohibited. On the other hand, Amendment 2 singled out gays for hostile treatment under law, rendering them alone incapable of attaining protected-category status through democratic processes. So in my view the case was a close one. But in the end the Supreme Court's 6-3 majority got it exactly right: Amendment 2 was impermissible class legislation. ``Central both to the idea of the rule of law and to our own Constitution's guarantee of equal protection,'' declared Justice Anthony Kennedy for the majority, ``is the principle that government and each of its parts remain open on impartial terms to all who seek its assistance.'' Noteworthy is what the court did not do. It did not, contrary to some analyses, recognize gays as a ``protected class'' or apply heightened judicial scrutiny. It was the state that defined the class and subjected it to adverse treatment under law. What the court did was to breathe new life into the equal protection guarantee. Since the New Deal, the court generally has invalidated legislative line-drawing only when it involves a ``suspect classification'' (such as race) or a ``fundamental'' right (such as voting or free speech). Most other governmental classifications need have only a ``rational basis'' to survive judicial scrutiny. As first-year law students learn, ``rational-basis'' review almost always translates into carte blanche deference to government regulators. That means a green light for nakedly protectionistic laws, particularly in the economic realm. In recent years, my colleagues and I have managed successfully under the rational-basis standard to challenge the District of Columbia's ban on street-corner shoeshine stands and Houston's anti-jitney law. But challenges to Denver's taxicab monopoly and to Washington, D.C.'s cosmetology licensing scheme on behalf of African hair- braiders were dismissed under rational basis, even though the regulations were aimed at excluding newcomers. For those entrepreneurs, the judicial abdication rendered equality under law a hollow promise. Such class legislation was of paramount concern to the Constitution's framers, who worried about the power of ``factions'' to manipulate the coercive power of government for their own ends. The Colorado amendment is a textbook example of class legislation. ``Homosexuals, by state decree, are put into a solitary class with respect to transactions and relations in both the private and governmental spheres,'' Justice Kennedy remarked. Amendment 2 ``imposes a special disability on those persons alone.'' In such instances, reflexive deference to governmental discretion would nullify constitutional freedoms. So the court required the government to show that its classification in fact was rationally related to a legitimate state objective. As Justice Kennedy declared, ``The search for the link between classification and objective gives substance to the Equal Protection Clause.'' In this case, the state justified its classification on grounds of freedom of association and conserving resources to fight discrimination against other groups. But as the court concluded, ``The breadth of the Amendment is so far removed from these particular justifications that we find it impossible to credit them.'' Contrary to Justice Antonin Scalia's dissent, the ruling does not mean the community cannot enforce moral standards. It merely must make its rules applicable to everyone. The state can prohibit various types of conduct, it can refrain from adding gays to the list of specially protected classes-- indeed, it can cast its lot with freedom of association and eliminate all protected classes. What it cannot do is to impose a distinctive legal disability upon a particular class, unless it can demonstrate legitimate objectives advanced through rationally related methods. Nor should equal protection depend on whose ox is gored. The same government that can impose legal disabilities upon gays can inflict them upon veterans, or the disabled, or home-schoolers, or entry-level entrepreneurs, or any other class targeted by those who control the levers of government. The court's decision in Romer v. Evans is the latest in an important but unremarked trend in which the Supreme Court has revitalized constitutional limits on government power in a variety of contexts. Exhuming the Fifth Amendment's ``takings'' clause, it has protected private property rights against overzealous government regulation. Last term, for the first time in 50 years, it invalidated a federal statute as exceeding congressional power under the interstate commerce clause. It has extended First Amendment protection to religious and commercial speech. And under the equal protection clause, it has sharply limited government's power to classify and discriminate among people on the basis of race. Alexis de Tocqueville observed that ``the power vested in the American courts of pronouncing a statute to be unconstitutional forms one of the most powerful barriers that have ever been devised against the tyranny of political assemblies.'' Largely unheralded, the current Supreme Court has become a freedom court. Though comprising shifting majorities, the court seems quietly to be constructing a constitutional presumption in favor of liberty--precisely what the framers intended.

Mr. FRANK of Massachusetts

Mr. FRANK of Massachusetts. I am not a homeless child, so I do not take it personally.

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

Mr. FRANK of Massachusetts. Mr. Chairman, I would agree. Let me just say in closing that this amendment, if it is defeated, is one more sign that compassion, that concern for helpless, innocent children has simply gone politically out of fashion. We will be inflicting, if we defeat this amendment, misery and deprivation on children who deserve far better of us. (Mr. BROWN of California asked and was given permission to revise and extend his remarks.)

Mr. FRANK of Massachusetts. Mr. Chairman, I move to strike the last word. Mr. Chairman, I thought there was to be a speaker on the other side. I misread his body language and I apologize. Mr. Chairman, I very much support this amendment. I understand the frustration that the gentleman from California talked about. He is trying hard, it is true. There is nothing logical that says we will take the Department of Veterans Affairs, the Environmental Protection Agency, NASA, and HUD and throw them together. That is not rational and we should try to change it. But I have to be intellectually honest and say that if I had the whole budget to choose from, I would still look to the space station, particularly the manned space part. Sending human beings into space is a reasonable thing to do, it is something in which we can take pride. I have never heard any argument that it was close to a necessity. We are not talking about continued exploration of space, but whether or not we have the manned space operation. On the other hand, we have what I would hope this society would think is a necessity: alleviating the suffering of small and innocent and helpless children. The homeless are not always the most attractive people. When we think about the homeless, people think of some whose behavior is unfortunate. It is true, there is nothing about adversity that guarantees that you will not be obnoxious. But a significant percentage of the people who would benefit from this amendment made one mistake in life: they were born in the wrong circumstances, and they are children. They are children condemned to a terrible existence. This amendment would alleviate it somewhat. Mr. Chairman, I want to address some of the reasons that have been given, not by the gentleman from California, because even when I disagree with him I find him fair and thoughtful, but here are arguments that say, you know, these programs, they have not been run well, so let us not give them money. As opposed to the space program? If we were to do comparative disasters, problems, misspending, I think the manned space program would be right up there with the homeless program. We have this interesting intellectual divide in our public policy. If you are trying to help the poor and you make a mistake in the program, the answer is to give that program less money. But is you are building a space station, or a weapon, or if you are part of the intelligence agency and you screw up badly, then the answer is to give you more money. We are told, gee, money is not always the answer. Well, money is the answer, apparently, for the Defense Department, for NASA, for the politically favored departments. The notion that because we have not spent some of this money as wisely in the past as we should have, we will therefore make it right by denying funds that can go to alleviate the misery of 10- and 12- and 5- and 4-year-olds, totally escapes me.

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

Mr. FRANK of Massachusetts. Mr. Chairman, let me say to the gentleman, do not take it personally. He is a good fellow. He has done a decent job. But that is not enough. I think where we have poor children going without desperately needed services, our egos have to bend a little. As far as the administration is concerned, I am sure the administration may have somewhat different priorities. I don not accept them in this case. As far as NASA giving up $43 billion, do Members know what you have to have before you can give up $43 billion? A lot more than $43 billion. I wish the homeless could have given up $43 billion, but they never got that much to give up. The poor people never make budget sacrifices like that because their budget never gets so stratospheric. The fact is that we have a choice: Do we put human beings in space at the current schedule, as attractive as that is for the national psychology and the national morale, and as helpful as it will be for science, or do we put the first priority an alleviating the poverty here at home? I want to add another argument that was made. One argument was these programs were not well run so let us take the money away. Another is that private charity will do it. People argue that private charity can do it. I want to quote here from the National Conference of Catholic Bishops in that wonderful pamphlet they put out about this year's election issues. This year I do not agree with all of them. There was one point that I thought was essential to be made.

Mr. FRANK of Massachusetts. Mr. Chairman, they noted that the Catholic Church is, by far, the largest provider of private charity in the United States. Based on that experience, and out of the compassion and concern for social justice that motivates them to do that, they repudiate the notion that there is no need for Government assistance. Let us be very clear. We may not comfort ourselves when we think of the small children who will be denied services if this amendment is defeated by the notion that somehow private compassion and charity will take it up. Yes, we should be doing everything we can to encourage that. But, as the Catholic bishops pointed out, as the largest provider of private charity in this country, there is simply no way we can expect the gap to be repaired if the Government backs out to this.

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

Mr. FRANK of Massachusetts. I would correct the gentleman on one thing. Remember, when we take programs for the poor and we do not keep them up with inflation, that is not a cut, that is an increase. It is only a cut when we fail to give an inflationary increase for the military and for science and for agriculture. So the gentleman should be clear. When the poor people fail to get enough money to keep up with inflation, they should be grateful for the little we gave them in the first place. It is only when the military or science or those other favored programs do not get inflation that an increase is a cut.

Mr. FRANK of Massachusetts. I am a Democrat. My colleague only gets praised by Republicans tonight.