Jeff Flake

Mr. FLAKE

Mr. FLAKE. Mr. Chairman, I rise to engage in a colloquy with the chairman. As the chairman knows, I have offered an amendment in the Rules Committee to address the problem of legal fees for property owners faced with the exercise of eminent domain by State and local governments. Homeowners in particular do not have the money to pay lawyers. Their main asset is tied up in a legal fight, so they cannot afford a challenge to the taking itself. In addition, most eminent domain lawyers operate on contingency for a percentage of the eventual price of the property condemned, so it is hard to get anybody to challenge the taking, and you certainly cannot get it without paying. The idea of the amendment is that owners are supposed to be no worse off after the condemnation than they were before. But if they have to pay their lawyer, whether by the hour or as a percentage of the sale price, they will always be worse off. Would the chairman be willing to work with me on this issue in conference in a way to address the needs of private property owners without encouraging frivolous lawsuits?

Mr. FLAKE

Mr. FLAKE. Mr. Chairman, I thank the gentleman for yielding me this time, and I appreciate the chairman's efforts to reach across the aisle and produce a true bipartisan bill, and I thank the gentleman from California (Mr. Cardoza) for working on this. If any of my colleagues have served on the Committee on Resources, as I have, you know that this is a truly bipartisan bill. The gentleman from West Virginia mentioned that everybody can find an example of how the current ESA is out of whack, and he uses that as an excuse not to move forward with a bill that reforms it. I would say that that is precisely the reason we need to reform it, because everybody can find not just one but two or three or a dozen examples in their own State of how the current law is not leading to recovery, but it is, rather, tying people up and making individuals and organizations simply pay for a regulation rather than recovery. The purpose of this bill is to lead to the recovery of species, and that is what this is all about. My own State of Arizona has had its own issues with the Endangered Species Act. Many times, those who manage water resources have been tied up with regulation that has required them to spend money on that rather than the recovery of species. This will make it far easier to do that. This bill will also mean a deal between a landowner and a Federal agency is a deal. So for many reasons, I would support the bill.

Mr. FLAKE

Mr. FLAKE. Mr. Speaker, on that I demand the yeas and nays. Parliamentary Inquiry

Mr. FLAKE

Mr. FLAKE. Madam Speaker, I ask unanimous consent that the name of the gentleman from Tennessee (Mr. Wamp) be removed as a cosponsor of my bill, H.R. 3684.

Mr. FLAKE

Mr. FLAKE. Mr. Chairman, that is too good an offer to turn down.

Mr. FLAKE. Mr. Chairman, I offer an amendment.

Mr. FLAKE. Mr. Chairman, I would simply point out that this applies only to the sentencing portion of the hearing or the sentencing portion of the trial, not the guilt or innocent phase. We are not limiting habeas corpus at all on that phase.

Mr. FLAKE. Mr. Chairman, will the gentleman yield?

Mr. FLAKE. Mr. Chairman, this amendment will reduce the backlog and delay of the Federal courts' dockets by limiting harmless error sentencing claims. These are claims in which the Federal court is asked to review alleged errors in death penalty cases in State court that were either procedurally defaulted, in which the defendant failed to present the claim in State court; or, two, that already have been reviewed by the State courts and have been determined to be harmless and that only relate to the prisoner's sentencing, not the portion of the trial that determines guilt or innocence. Under this amendment, fact-intensive and time-consuming ``harmless error sentencing claims'' will be reviewed again in Federal court only if the State court erred in determining that the claim was subject to harmless review. An example of how this impacts victims of child abusers was raised at the House Committee on the Judiciary Subcommittee on Crime hearing by Ms. Carol Fornoff, whose 13-year-old daughter was raped and murdered in Tempe, Arizona, in 1984. The evidence of the guilt of the man convicted in killing her daughter was overwhelming. Yet, today, 21 years after Christy Ann Fornoff was murdered, the gentleman is still litigating his habeas appeals. Mr. Chairman, this amendment will reduce the backlog and delay of the Federal courts' dockets by limiting harmless-error sentencing claims. These are claims in which the Federal court is asked to review alleged errors in death penalty cases in State court that were either (1) procedurally defaulted--in which the defendant failed to present the claim in state court, or (2) that already have been reviewed by State courts and have been determined to be harmless, and (3) that only relate to the prisoner's sentencing--not to the portion of the trial that determines guilt or innocence. Under this amendment, fact-intensive and time-consuming ``harmless- error sentencing claims'' will be reviewed again in Federal court only if the State court erred in determining that the claim was subject to harmlessness review. An example of how this impacts victims of child abusers was raised at a House Judiciary Crime Subcommittee hearing by Mrs. Carol Fornoff, whose 13-year-old daughter was raped and murdered in Tempe, Arizona in 1984. The evidence of the guilt of the man convicted of killing her daughter is overwhelming, yet today--21 years after Christy Ann Fornoff was murdered--the defendant still is litigating his habeas appeals in the Federal courts. Mrs. Fornoff's testimony raised important questions. There needs to be some limit, some end to the process in these cases. After 9 years under the Anti-Terrorism and Effective Death Penalty Act of 1996 or ``AEDPA'' (Ay-Depa), it is clear that the Act did not eliminate or even reduce the problem of delay in the Federal habeas process. As evidenced by testimony in the Senate Judiciary Committee, in my home state of Arizona, 63 capital cases have been filed and remain pending since the effective date of the AEDPA (Ay-Depa). Of those cases, only one has advanced to the Ninth Circuit, where it has remained pending for the past 5 years. Thirteen pre-AEDPA (Ay-Depa) cases remain pending in Federal court; five of those cases have been in Federal court longer than 15 years; the others range in time from 9 years to 14 years. This is unacceptable. The current system is grossly unfair to crime victims and their families. While defendants always should be allowed to litigate meaningful evidence of their innocence, we also should not allow endless appeals to become routine. We need to protect innocent defendants, and we also need to allow victims and their families closure on these crimes. Let me be clear that fundamental sentencing errors, and all guilt- phase errors, still would be subject to a second round of review in Federal court under this amendment. Also, this amendment does not in any way limit the State courts' review of State criminal convictions, nor does it affect the U.S. Supreme Court's review of either a defendant's direct appeals or State- habeas petitions. The amendment only limits the Federal habeas review that begins in the lower Federal courts after all State appeals and U.S. Supreme Court certiorari review are completed. Congress unquestionably has the authority to limit such review. Deference to State courts is appropriate in this context, since these courts are closer to the trial and will have a better sense of what facts are likely to influence local juries. This section merely precludes a repeat of this process at the Federal level for minor errors that are not related to guilt of the underlying offense, and that already have had an opportunity for review in State courts. I urge my colleagues to adopt this amendment.

Mr. FLAKE. I yield to the gentleman from Wisconsin.

Mr. FLAKE

Mr. FLAKE. Mr. Speaker, we have already made a down payment of $10.5 billion. We will do another $50 billion likely later this week, as we should. I want to encourage my colleagues in our leadership to seek out offsets. When a family has an emergency, they will sometimes put it on a credit card or plan for it some other way. Our credit is just about at its limit, and we have to dig deep within ourselves and say, how are we going to pay for this? What else are we going to cut? I have many suggestions. A prescription drug benefit that will go into effect next year has about a $40 billion price tag for 1 year. That will be a great place to start. We just passed a massive transportation bill that we ought to have revisions on. There are many ways that we can look for the money, but we have to find the money somewhere, and we should not simply assume that we can spend new money and that everything will go along just fine. We have to be responsible with the Nation's resources.

Mr. FLAKE

Mr. FLAKE. Mr. Speaker, I rise today feeling a little like a skunk at a wedding, or probably more accurately, road kill. I will cast later today what I am sure will be a lonely vote against this legislation. Mr. Speaker, I hope this is the last highway authorization bill we do in this fashion. In 1986, President Reagan vetoed the bill because of what he said were excessive earmarks or projects. I believe there were some 150 in that bill. There are nearly 6,000 in this bill today. That is no way to spend money. As more earmarks come, fewer dollars as a percentage actually go to critical needs. It is spent in other directions, and it is not the direction we ought to go. Equally troubling in this bill are budget gimmicks, the biggest one being that we rescind on the last day of reauthorization $8.6 billion to bring this under the number that the President said he will not veto. I would submit that nobody actually believes we are going to rescind that money. Let us be honest about this: This is busting the budget. I urge Members to vote ``no.''

Mr. FLAKE

Mr. FLAKE. Mr. Speaker, this bill that we consider today, the transportation bill, ought to carry the same warning that drivers see on their rear view mirror: Items are larger than they appear. This bill contains a rescission on the last day authorized by the bill several years hence which rescinds about $9 billion. It is a gimmick. It is nothing more than a gimmick to allow us to spend more than the President said we need to or he would veto the bill. Mr. President, please veto this bill. We are out of control here on spending. And this bill goes far over the mark that you have laid out. It also bothers a lot of us Republicans to hear it described as a ``jobs bill.'' We are hearing jobs, jobs, jobs. We are not all Keynesians here. We do not believe that taking money out of taxpayers' pockets is the best way to create jobs. The best way is to leave it with them. Mr. Speaker, we ought to have a transportation bill that reflects what is in the trust fund--nothing more. And it ought to be distributed in a way that does not include 6,000 earmarks.

Mr. FLAKE

Mr. FLAKE. Mr. Speaker, on that I demand the yeas and nays.

Mr. FLAKE

Mr. FLAKE. Mr. Chairman, I demand a recorded vote.

Mr. FLAKE. Mr. Chairman, I rise in support of the Pence amendment. It is important to remove this language in H.R. 22 that reserves one seat on the Postal Board of Governors for a representative of labor unions. The U.S. Postal Service is a government-owned corporation and, as such, is technically owned by the U.S. taxpayers. Reserving one space exclusively for labor representatives confers preferential status and, in my view, undue influence to one interest group at the expense of all other stakeholders in postal operations, particularly first-class mail users. I think it is a good amendment. I think it is something that I believe this kind of set-aside may not be in the Senate version of the bill. It is certainly a topic that needs to be debated and taken up in conference, and I would encourage my colleagues to accept it.

Mr. FLAKE. Mr. Chairman, I yield myself 1 minute. I should point out to the gentleman that postmasters would have full authority under this legislation, under this amendment to actually contract out or not. They can disband the alternative at any time. Now, under the law, only the government can do it right, and we ought to take over the entire economy. If we do not trust the private sector to deliver services more effectively and more efficiently than the government can, shoot, why do we not get in every business. We know that that is not the case. We know the private sector typically can do it better, faster, cheaper, smarter than government. Every 4 years, we are back in again to bail out the USPS. This simply says, why do we not try something, try some alternatives that are working in other countries; try some things that might work, that might lower the cost, that might be more taxpayer-friendly than this. That is what this amendment is all about. Mr. Chairman, I reserve the balance of my time.

Mr. FLAKE. Mr. Chairman, I yield myself the balance of the time. I will go ahead and wrap up. Labor costs consume 80 percent of the Postal Service revenue, whereas UPS and FedEx spend only 56 and 42 percent of their revenues on labor. I know there are differences. It is a little different animal when we are talking about first class mail delivery, and what FedEx and UPS do, but 80 percent versus 56 and 42 percent respectively. I think we ought to be questioning ourselves, what are they doing that we are not? What can we do so we will not have either more money out of the general fund or a rate increase? Whether it is paid by the consumer with monopoly service or the taxpayer is the same. It is both money coming out of the taxpayers' or consumers' pockets. And I do not want to be here, like I said, 4 years from now talking about another rate increase or talking about more money from the general fund because we simply have not done anything about making sure that competition drives improvement in service and it controls cost. We know that from everything we know about the economy. We know that from education reform. We know that in other areas as well. Competition and choice controls costs and improve quality. This is what we are trying to jump-start here. That is the purpose of this amendment. As the gentleman from Indiana (Mr. Pence) mentioned, this is hardly revolutionary. A fraction of 1 percent would be allowed to actually test this proposition, that maybe competition would help control cost and improve quality, a fraction of 1 percent of all of the sites out there, of all of the systems running. So this is a very modest amendment. I think it is important. Mr. Chairman, I yield back the balance of my time.

Mr. FLAKE. Mr. Chairman, I reserve the balance of my time.

Mr. FLAKE. Mr. Chairman, I yield 1 minute to the gentleman from Texas (Mr. Hensarling).

Mr. FLAKE. Mr. Chairman, I yield myself such time as I may consume. My amendment is quite simple. It establishes a pilot program in at least 20 test communities, which would sunset in 5 years, to allow the U.S. Postal Service and the Congress to simply gather information. This pilot program would test the feasibility and desirability of alternative methods for the delivery of postal services. The pilot program would test the current following assumptions about the Postal Service: Are consumers better off if the Postal Service remains a monopoly? Does the current postal infrastructure allow for as many delivery offerings as possible? Is the total value of the universal service model for postal delivery worth the expense? Now, universal service by the Postal Service would continue to be provided, but participating postmasters would not be limited by the current monopoly statutes on first-class delivery and the use of postal mailboxes. If the postmaster so chooses, alternative providers, such as commercial enterprise, nonprofit organization, or a labor organization that satisfies a strict set of criteria could serve as an alternative provider for postal services. They would also be able to use the equipment and facilities of the USPS at the discretion of the postmaster for fair market value. Mr. Chairman, with the dramatic reduction in first-class mail volume, coupled with the inability of the Postal Service to control costs, the Postal Service and Congress must have many well-tested alternatives for the future of mail delivery in the U.S. Many European countries are well ahead of the U.S. on some new innovative ideas for structuring their respective postal delivery services. The pilot program is simply a test program to provide the Postal Service and Congress with useful information to make future changes to postal services, if needed. I might add, Mr. Chairman, we know that some changes are needed. We are running into deficits; and every 4 years, we are bailing out the USPS. I do not want to be here 4 years from now doing the same thing. So let us test some alternatives. Let us see what else works. Let us see what other countries are doing that we might adopt to control costs and improve quality. Mr. Chairman, I reserve the balance of my time.

Mr. FLAKE. Mr. Chairman, I offer an amendment.

Mr. FLAKE. Mr. Chairman, before yielding 2 minutes to the gentleman from Indiana, let me just say that asking the Postal Service to give up what might lead to giving up their monopoly or a portion of their monopoly is unreasonable. We need to prime the pump a little. No private business would in their self-interest do that either. That is why this amendment is important. Mr. Chairman, I yield 2 minutes to the gentleman from Indiana (Mr. Pence).

Mr. FLAKE

Mr. FLAKE. Mr. Speaker, today the Senate will hold hearings to start the process for comprehensive immigration reform. We will soon start those same hearings hopefully in the House. As we begin this, I simply want to remind everyone here that we believe in the rule of law. We need to enforce the rule of law. We need to enforce our Nation's laws, but in order to do so, we have to have laws that we can enforce. Those who say let us enforce the law, the current law, and then have a temporary worker program have yet to offer a proposal to actually enforce the current law, which would require that the 10- to 15 million illegals who are now, most of them, working in jobs would actually be deported to their country of origin and subject to a 10-year bar from reentry. If that is what people mean by enforcing the current law, then please offer a proposal to do so. But, if not, then let us work together on a comprehensive plan for comprehensive immigration reform that has a guest worker plan and also a provision to enforce the new law. That is what we need to do in this country.

Mr. FLAKE

Mr. FLAKE. Mr. Chairman, reclaiming my time, I just want to say in closing, this has been a collaborative process. I appreciate those who have worked with us, and again my appreciation goes to the chairman of the committee for having such a thorough process and allowing us to have amendments. As I mentioned, we had a markup that lasted over 12 hours. Many of these amendments were discussed at length, as were other amendments. I appreciate that and urge support of the amendment. Mr. Chairman, I yield back the balance of my time.