T. Gorton

Mr. GORTON

Mr. GORTON. Mr. President, I ask unanimous consent to proceed as in morning business for not more than 5 minutes.

Mr. GORTON

Mr. GORTON. Mr. President, I suggest the absence of a quorum.

Mr. GORTON

Mr. GORTON. Although many in Congress and legions across the country will be on vacation in August, Microsoft people will be working overtime to make sure that their long-awaited new operating system software for personal computers is officially released as scheduled on August 24. The company is convinced that Windows 95 will help make personal computers significantly easier to operate, more fun, and more productive for millions of Americans. On that same day, Miscrosoft plans to launch a new online information service, the Miscrosoft Network, as a competitor to existing online services like America Online, CompuServe, and Prodigy. Microsoft is not alone in anxiously awaiting August 24 in this new product and online service. As the Wall Street Journal reported recently, hundreds of other computer hardware companies, equipment manufacturers, and independent software developers and content providers all stand to benefit enormously from the introduction of Windows 95 Microsoft Network. The Journal speculated much of the continued growth of the high technology economy and the overall stock market is tied to the timely and successful launch of this online service. It is not surprising, therefore, that several commentators have questioned the Department of Justice's belated investigation of Microsoft's decision to include access software for the Microsoft Network as a feature of Windows 95, a decision announced last year. I share the commentators' concern with the timing of this investigation, and hope that this 11th hour investigation will not delay the introduction of Microsoft's much anticipated software, an introduction that will increase both consumer choice and competition. In the event my colleagues missed the articles, I ask unanimous consent they be printed in the Record.

Mr. GORTON

Mr. GORTON. Mr. President, I am authorized by the manager on this side to yield myself such time as I may take. I point out the Senator from New Hampshire, under the previous order, is the next to be recognized. Mr. President, do you remember that wonderful phrase that a few years ago was turned into the title of a movie, ``Only In America,'' an expression of awe and wonder? Mr. President, I think we have to rephrase it as a question of stunned disbelief. Only among Democrats, only among the few left on that side of the aisle who, as liberals, worship at the shrine of an ever-increasing Government, only among those who debate against this budget resolution is a $300-billion-plus increase in what this country will spend on Medicare described not as a cut but a slash. Mr. President, if this budget resolution passes, not only will we preserve a Medicare system which otherwise will go bankrupt, we will spend more than $300 billion in increased Government support of Medicare in the next 7 years. Yet these last two Senators speak of cuts and slashes, deserting of our commitments. The increase in Medicaid during that period of time will be almost half as much. It is also described as a cut, as a slash. Only among liberal Democrats, Mr. President, only among liberal Democrats is a modest reduction in a check coming to an individual from the Government described as a tax increase. But that is the way we mistranslate for the American people. If your welfare payment goes down, that is a tax hike by their description. Only among Democrats, Mr. President. Mr. President, they are right about this. This is perhaps the most significant budget resolution to be passed by the Congress of the United States since we instituted the concept of budget resolutions. Why? Because this is the first one that gives a real and enforceable promise that the budget will be balanced. It is the goal of this process to end the time, the decades during which Members of Congress spend the people's money and send the bills to their children and to their grandchildren. That is not a policy for our future, for those children and for those grandchildren. We propose to end that era. Why? Because borrowing, year after year, $200 billion more than we can repay, eats into our ability to invest in our own future. It drives up interest rates and drives up job opportunities for the very people our opponents, in defending the status quo and defending those deficits, claim to be supporting but are actually oppressing. Even the promise in this budget resolution, if appropriately enforced, gives us a dividend of $170 billion for the public sector in lower interest rates on the debt we have, and in increased tax collections from a more vibrant economy which has created more jobs. And it gives far more than that to the people whom we are here to serve. Granted, on the part of the manager of this bill for the Democrats and some of his colleagues, there is lip service given to the idea of a balanced budget, someday, long in the future--but not now and not in this way. Always in some different way. The President of the United States, when he was a candidate, told us he would pass a balanced budget. He claimed 2 years ago to have reduced our budget deficit which he did almost entirely by increasing taxes on the American people and then is surprised this year when the tax bill comes due and at the very time it comes due, because money is taken out of our pockets, we have a pause, a dip in our own economy--a possible recession caused by those tax increases. Earlier this year, the President was not interested in a balanced budget at all. More recently, he has come to feel it is appropriate. But not now and not in this way and not with valid figures. We say it is time. The time is now and this is the way. Some of us will say, as we often do in many bills here: This bill is not perfect, but it is the best we can come up with. Mr. President, I guess I do not think it is perfect. It is not exactly what I would have written or the direction I would have gone. But that is absolutely irrelevant. There are 100 of us here in this body, each with a different point of view, and none of us with an absolute certainty as to what perfection is. But what this is is the reaching toward a goal. Perfection is not our goal, a balanced budget is. This budget will lead us to that point and in doing so, will allow more money to remain in the pockets of the American people, will create more jobs for them, will lower the interest rates on their homes and, not at all incidentally, lower the interest rates on those student loans we have heard so much about-- undoubtedly by considerably more than whatever the changes in those loan policies may well be. A balanced budget is a concrete goal. A balanced budget is what we will reach if we pass and enforce this budget resolution. In doing so, yes, Mr. President, we will lower taxes on the American people. Only over there on that side of the aisle, Mr. President, is a $500 family tax credit for any person who makes enough money to pay $500 in income taxes described as a tax break for the rich. Only over there is someone who pays any income tax at all and gets a break under this proposal--rich. The people whom we serve will be surprised to learn how many of the wealthy there are who presumably are on the dole of these tax reductions. And I guess, Mr. President, that is the single worst element of this proposal from the point of view of those who love the status quo and love the Government we have today. The thought that an American--any American--might possibly be allowed to keep any additional amount of what they earn is the worst possible policy from their point of view because they believe the Government ought to be spending that money, and we do not. That is the difference between us. Mr. President, this is a budget resolution that will build America. And this is a budget resolution which I must say is a tribute to the senior Senator from New Mexico, the chairman of the Budget Committee. New Mexico's inestimable gift to the U.S. Senate, my friend, the friend of the Presiding Officer, who, with a tremendous commitment to the future of this country and a patience which I know that I could not match and a willingness to listen to different points of view, both reasonable and unreasonable but never abandoning the goal of a better America, an America which stops sending its bills to its future, has led us to a budget resolution which will reach that goal. I want to say in conclusion, Mr. President, that I hope this budget resolution passes with a large majority. But large or small, it will make for a better country, and its passage will be a magnificent tribute to its author, the senior Senator from New Mexico. Mr. DOMENICI addressed the Chair.

Mr. GORTON

Mr. GORTON. Mr. President, I am honored to offer my congratulations to Maj. Gen. David P. de la Vergne, who retires on June 25, 1995, as commanding general and civilian executive officer of Fort Lawton, WA. The general's career has been exemplary. A native of Meriden, CT, he graduated from the Citadel and was commissioned a second lieutenant in 1961. After attending the infantry officer's basic and counterintelligence officers course, he served as special agent in charge of the Hartford Resident Office of the 108th Intelligence Corps Group. He did tours in Germany as operations officer of the 207th Military Intelligence Detachment and as commander of the Columbia Field Office of the 111th Military Intelligence Group. Posted to I Corps Advisory Group, Military Assistance Command Vietnam, he served as order of battle advisor and sector intelligence advisor, and then returned from Vietnam to serve as security officer for the Defense Language Institute in Monterey, CA. After leaving active military duty in 1971, Major General de la Vergne was assigned to the 6211th U.S. Army Garrison, Presidio of San Francisco, where he served as inspector general, S-1, comptroller, and deputy commander before leaving to assume command of the 2d Battalion, 363d Regiment, 4th Brigade, 91st Division, training; Returning to the 6211th in 1981, he served as the garrison commander for 3 years before leaving for the 124th ARCOM, where he served as deputy chief of staff, resource management, as deputy chief of staff, operations, and then as chief of staff and deputy commander prior to his current assignment as commanding general. Major General de la Vergne is a graduate of the Command and General Staff College and the Army War College, and he has completed courses at the Intelligence School, the Defense Language Institute, the Industrial College of the Armed Forces, the Inspector General School, the U.S. Army Institute for Administration and the Army Logistics Management Center. His decorations include the Bronze Star, the Meritorious Service Medal with Oak Leaf Cluster, the Air Medal, the Joint Service Commendation Medal, the Army Commendation Medal with two Oak Leaf Clusters, the Republic of Vietnam Cross of Gallantry with Bronze Star and the Republic of Vietnam Honor Medal First Class. Time and time again, the general has proven his mettle and displayed most excellent leadership. To quote from the citation for his Distinguished Service Medal, which will be awarded on the occasion of his official change of command ceremony on June 25, 1995: . . . for exceptionally meritorious service of great responsibility: Major General David P. de la Vergne distinguished himself by exceptionally meritorious service in successive positions of great responsibility from 15 March 1988 to 27 March 1995. In all assignments, General de la Vergne displayed unexcelled leadership and absolute dedication. As Chief of Staff and later Deputy Commander, 124th United States Army Reserve Command (ARCOM), Fort Lawton, Washington, he displayed exceptional vision, skill, and tenacity in the management and direction of major Army activities. Culminating his distinguished service as Commander of the 124th ARCOM, General de la Vergne took immediate steps to provide the ARCOM with a positive image of its leaders and mission. General de la Vergne's energetic approach for improvement in training, logistics, and recruiting resulted in the molding of a mission-capable unit. His dynamic leadership and unique managerial abilities were instrumental in achieving significant improvements in the readiness posture of the 124th ARCOM elements. This was most evident during the mobilization of nine units to support Operation DESERT SHIELD and Operation DESERT STORM. Major General de la Vergne's unswerving dedication, outstanding service, professional skill, and superb leadership reflect great credit upon him, the United States Army Reserve and the United States Army.'' I want to thank Major General de la Vergne for his many years of service to this country, and I wish him and his wife, Elinor, all the best.

Mr. GORTON

Mr. GORTON. Mr. President, on May 25, the Senate Labor and Human Resources Committee voted to approve President Clinton's nomination of Dr. Henry Foster as Surgeon General, over my opposition. I voted against Dr. Foster because he has shown extreme intolerance of those with whom he disagrees, and is therefore not the kind of Surgeon General who can or will exercise broad moral leadership. I intend to vote against his nomination here in the Senate if that nomination comes to a vote. Dr. Foster's indulgence in name-calling--decrying those who disagreed with him as ``white, right-wing extremists''--came after his nomination, when he was already a public figure. His behavior shows his lack of capacity to build consensus. For the first 2 years of the Clinton administration, this Nation suffered a needlessly divisive Surgeon General. We do not need another for the remaining year and a half. The next surgeon general should heal wounds, not deepen them. Despite my opposition to Dr. Foster's confirmation, however, I will vote for cloture. If a majority of the Senate is willing to confirm the nominee, then he should be confirmed. All sides have had ample time to air their views; no useful purpose is served by further delay. But the most important reason not to filibuster Dr. Foster's nomination is that a filibuster will set a terribly damaging precedent. Had this tactic been used 4 years ago, Clarence Thomas would not be on the U.S. Supreme Court today. Dr. Foster deserves a straight up-or-down vote. Whether one agrees with him or not, he is entitled to the same consideration given almost every other nominee. In 2 years, a Republican President will be submitting nominees for far more important offices. That President will appoint Cabinet members and Supreme Court Justices who undoubtedly will be opposed by Democrats and the national media. I do not want to make it easy for them to stall nominations of future conservatives by giving their opponents the moral precedent to use the filibuster as a means of defeating them. I also do not want to further cloud the nomination process by essentially ensuring that the only nominees who can gather the necessary 60 votes for confirmation are those with no track record, no history of making bold statements, and no strong views that make them attractive to large segments of our Nation. Nominations to the Supreme Court are the most important a President can make, nominations that affect the future of the country long after the President who made them is gone. To put at risk future nominations to the Supreme Court just so we can hand President Clinton a setback today makes little sense. I agree that Dr. Foster should not be put in a position where he will have a forum to speak about the important issues of the day. He has already proven that when he is given that opportunity, he will make comments that divide our Nation and lead to the kind of debate we see here on the Senate floor. Dr. Foster is not a builder; to the contrary, he uses political rhetoric to divide people, a tactic that makes for captivating headlines in the newspapers and provocative television stories, but does little to make our Nation stronger. So let me be clear--no matter how strongly I feel that the nomination of Dr. Foster should be defeated, I am not willing to put the long-term future of our Nation at risk by allowing a precedent to be set that could lead to the filibuster of the next Republican nomination to the Supreme Court. In short, my Republican colleagues should not now set a precedent they will soon come to regret. To prevent this vote from coming to the floor is to [[Page S 8742]] thwart the democratic process and to tamper with appropriate executive privilege. I remain as opposed as ever to the confirmation of Dr. Foster, but I am unwilling to put the long-term future of our Nation at risk by allowing such a mischievous precedent to be set.

Mr. GORTON

Mr. GORTON. Mr. President, I wish to discuss a serious and important issue facing the Nation: Our growing supply of civilian spent nuclear fuel that has no home. My friend from Alaska, Senator Murkowski, submitted a statement for the record before the Senate adjourned for the Memorial Day recess. In it, he discussed a number of policy options to be employed for interim storage. Hanford, WA, and Savannah River, SC were two sites he mentioned as possible interim storage facilities for civilian spent nuclear fuel. Located in the southeastern part of Washington State, the Hanford Reservation is home to over 80 percent of the Nation's spent plutonium fuel--2,132 metric tons by Senator Murkowski's count. The most potent of that waste sits hundreds of yards from the Columbia River in 50- year-old concrete pools. These pools are not sophisticated and certainly not designed to store some of the deadliest materials produced by man. Hanford faces a particularly difficult situation. This year the site has incurred serious criticism for the waste and inefficiencies that have become associated with Hanford cleanup. Much of this criticism is well deserved. Some, however, is off-base and ignorant of the monumental task at hand. Hanford has a mission--it is to follow through on the noble and worthy effort this Government undertook to win World War II. The site must be cleaned--that is the task at hand. Adding more waste to Hanford, as I have said before, makes little sense. As the chairman of the Energy Committee, Senator Murkowski has joined the ranking member, Senator Johnston in introducing a bill that, I fear, would impede ongoing cleanup efforts at the site. So it is puzzling, when my friend suggests Hanford can barely tie its own shoes, but in the next breath, he says the site should be burdened with massive amounts of additional waste. There is a disconnect. I believe Hanford's mission is to focus on cleanup. So let me be clear: Shipping spent civilian nuclear fuel to Hanford sets a dangerous, and perhaps irrevocable, precedent. And unfortunately, despite Senator Murkowski's assurances to the contrary, when dealing with waste that has a half- life of thousands of years, ``interim'' takes on an entirely new meaning. Senator Murkowski, fortunately, understands there is considerable room for debate on this issue. He is absolutely right to point out the problems the country faces in light of the impending spent fuel storage crisis. I also sympathize with the Senator from Alaska's frustration at both DOE and the President's lack of progress at Yucca Mountain. As he correctly notes, over $4.2 billion has been spent on the Yucca Mountain project to date--with nothing to show for the effort. Rather than abandon this program altogether--which the House essentially does in its budget resolution this year--does it not make more sense to push through and finish a project that has absorbed significant time and money? Quite clearly, the United States must build a long-term storage facility for its high-level nuclear waste. Yucca Mountain, by most indications, is the logical choice. As the Senator from Alaska emphasized in his statement, both an interim storage site and transportation system at Yucca Mountain must be developed. If it is the intention of the Federal Government to send waste to Yucca Mountain eventually, why not send the spent fuel there temporarily, until the permanent depository is ready? It is remote, arid, and has had a mission of testing nuclear devices for over 40 years. And perhaps most important, by placing a temporary facility at Yucca Mountain, transporting this deadly material across the Nation is limited to one voyage. My intent today is not to solve the interim storage problems that the Nation faces with its growing stockpile of spent civilian nuclear fuel. I do, however, want to point out an inconsistency this Congress is contemplating: Cleaning Hanford while simultaneously adding more waste begs common sense. And I urge my colleagues to keep this in mind in their deliberations.

Mr. GORTON

Mr. GORTON. Mr. President, I heard the remarks of my distinguished colleague from New Mexico, and I can simply echo them from the perspective of membership on the Commerce Committee. Senator Pressler has met this test with flying colors and deserves a tremendous amount of credit. But not the least of the items for which he deserves praise is his ability and willingness to work with the distinguished Senator from South Carolina, Senator Hollings. I have said this privately to the Senator from South Carolina, it is obviously difficult to be in charge, to be a chairman of the committee, to have strong ideas on a subject as he has had, and then find himself, without any action on his part, in a different position. His willingness to share his wisdom and his ideas--not just with Senator Pressler, but with all members on the Commerce Committee--and his willingness to make this such a constructive bipartisan endeavor is a tribute to him and, I think, to the Senate. This bill, as I said in my opening remarks, is as important a piece of legislation as the Senate has dealt with, which has created no interest in the general public at all outside, of course, of the various entities that are in the business itself. To reach as good a conclusion as we seem to have reached and to have done it in such a bipartisan fashion brings great credit, in my view, on the chairman of the committee, but very, very much credit on my good friend from South Carolina, whose wisdom and guidance and views on this subject are very much impressed in the bill itself and are vitally important to our success.

Mr. GORTON

Mr. GORTON. Madam President, the section at issue here is a section entitled ``Removal of Barriers to Entry.'' And the substance of that section is that ``No State or local statute or regulation may prohibit or have the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications services.'' Madam President, this is not about cable companies, although cable companies are one of the subjects of the section. This is about all of the telecommunications providers that are the subject of this bill. And it is the goal of this bill to see to it that the maximum degree of competition is available. And in doing so, these fundamental decisions about whether or not an action of the State or local government is an inhibition or a barrier to entry almost certainly must be decided in one central place. The amendment to strike the preemption section does not change the substance. What it does change is the forum in which any disputes will be conducted. And if this amendment--the Feinstein amendment--in its original form is adopted, that will be some 150 or 160 different district courts with different attitudes. We will have no national uniformity with respect to the very goals of this bill, what constitutes a serious barrier to entry. This will say that if a State or some local community decides that it does not like the bill and that there should be only one telephone company in its jurisdiction or one cable television provider in its jurisdiction, no national organization, no Federal Communications Commission will have the right to preempt and to frustrate that monopolistic purpose. It will have to be done in a local district court. And then if another community in another part of the country does the same thing, that will be decided in that district court. So, Madam President, this amendment--the Feinstein amendment--goes far beyond its legitimate scope. But it does have a legitimate scope. I join with the two sponsors of the Feinstein amendment in agreeing that the rules that a city or a county imposes on how its street rights of way are going to be utilized, whether there are above-ground wires or underground wires, what kind of equipment ought to be used in excavations, what hours the excavations should take place, are a matter of primarily local concern and, of course, they are exempted by subsection (c) of this section. So my modification to the Feinstein amendment says that in the case of these purely local matters dealing with rights of way, there will not be a jurisdiction on the part of the FCC immediately to enjoin the enforcement of those local ordinances. But if, under section (b), a city or county makes quite different rules relating to universal service or the quality of telecommunications services--the very heart of this bill--then there should be a central agency at Washington, DC, which determines whether or not that inhibits the competition and the very goals of this bill. So, Madam President, I am convinced that Senators Feinstein and Kempthorne are right in the examples that they give, the examples that have to do with local rights of way. And the amendment that I propose to substitute for their amendment will leave that where it is at the present time and will leave disputes in Federal courts in the jurisdictions which are affected. But if we adopt their amendment, we have destroyed the ability of the very commission which has been in existence for decades to seek uniformity, to promote competition, effectively to do so; and we will have a balkanized situation in every Federal judicial district in the United States. So their amendment simply goes too far. Now, Madam President, I can see some, including some of the sponsors of the bill, who feel that this preemption ought to be total. And those who feel it ought to be total should vote ``no'' on the Feinstein amendment and ``no'' on mine as well. Those who feel that there should be no national policy, that local control and State control of telecommunications is so important that the national policy should not be enforced by any central agency, should vote for the Feinstein amendment. But those who believe in balance, those who believe that there should be one central entity to make these decisions, subject to judicial review when they have to do with whether or not there is going to be competition, when they have to do with the nature of universal service, when they have to do with the quality of telecommunications service or the protection of consumers, but believe that local government should retain their traditional local control over their rights of way, should vote against the Feinstein amendment and should vote for mine. It is the balance. It meets the goals that they propose their amendment to meet without being overly broad and without destroying the national system of telecommunications competition, which is the goal of this bill.

Mr. GORTON. Mr. President, I move to reconsider the vote.

Mr. GORTON. Madam President, once again, the alternative proposal, which will be voted on only if this amendment is defeated, retains not only the right of local communities to deal with their rights of way, but their right to meet any challenge on home ground in their local district courts. The Feinstein amendment itself, Madam President, would deprive the FCC of any jurisdiction over a State law which deliberately prohibited or frustrated the ability of any telecommunications entity to provide competitive service. It would simply take that right away from the FCC, and each such challenge would have to be decided in each of the various Federal district courts around the country. The States retain the right under subsection (d) to pass all kinds of legislation that deals with telecommunications providers, subject to the provision that they cannot impede competition. The determination of whether they have impeded competition, not by the way they manage trees or rights of way, but by the way they deal with substantive law dealing with telecommunications entities. That conflict should be decided in one central place, by the FCC. The appropriate balance is to leave purely local concerns to local entities, but to make decisions on the natural concerns which are at the heart of this bill in one central place so they can be consistent across the country. Madam President, the purposes of this bill will be best served by defeating this amendment and adopting the subsequent amendment. I yield back the balance of my time.

Mr. GORTON. Madam President, how much time is remaining?

Mr. GORTON. Mr. President, I move to reconsider the vote.

Mr. GORTON

Mr. GORTON. I would like to continue with the consideration of the amendment. Mr. LOTT addressed the Chair.

Mr. GORTON. Mr. President, last night, our distinguished colleagues from California and Idaho proposed an amendment with respect to a section entitled ``Removal of Barriers to Entry.'' That section in toto says that the States and local communities cannot impose State or local requirements that may prohibit or have the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications services. Mr. President, that, of course, is a very, very broad prohibition against State and local activities. And so thereafter there follow two subsections that attempt to carve out reasonable exemptions to that State and local authority. One has to do specifically with telecommunications providers themselves and speaks in the general term of allowing States to preserve and advance universal service, protect the public safety and welfare, ensure the continued quality of telecommunications services, and safeguard the rights of consumers, which are, of course, the precise goals of this Federal statute itself. However, the third exception is ``Local Government Authority.'' That local government authority relates to the right of local governments to manage public rights-of-way, require fair and reasonable compensation to telecommunications providers, the use of public rights-of-way on a nondiscriminatory basis, and so on. Then the final subsection is a preemptive subsection, Mr. President, and it reads: If, after notice and an opportunity for public comment, the Commission determines that a State or local government has permitted or imposed any statute, regulation, or legal requirement that violates or is inconsistent with this section, the Commission shall immediately preempt the enforcement of such statute, regulation, or legal requirement to the extent necessary to correct such violation or inconsistency. Now, our two distinguished colleagues said that that preemption was much too broad, that its effect would be to say to a major telecommunications provider or utility all you have to do, if the city of San Francisco or the city of Boise attempts to tell you what hours you can dig in the city streets or how much noise you can make or how you have to reimburse the city for the damage to its public rights-of- way, that all that the utility would have to do would be to appeal to the Federal Communications Commission in Washington, DC, and thereby remove what is primarily a local question and make a Federal question out of it which had to be decided in Washington, DC, by the Federal Communications Commission. And so the Feinstein-Kempthorne amendment strikes this entire preemption section. Now, the Senator from California I think very properly tells us what the impact of that will be. It does not impact the substance of the first three subsections of this section at all, but it does shift the forum in which a question about those three subsections is decided. Instead of being the Federal Communications Commission with an appeal to a Federal court here in the District of Columbia, those controversies will be decided by the various district courts of the United States from one part of this country across to every other single one. Now, Mr. President, in the view of this Senator, there is real justification in the argument for both sides of this question. The argument in favor of the section as it has been reported by the Commerce Committee is that we are talking about the promotion of competition. We are talking about a nationwide telecommunications system. There ought to be one center place where these questions are appropriately decided by one Federal entity which recognizes the impact of these rules from one part of the country to another and one Federal court of appeals. On the other hand, the localism argument that cities, counties, local communities should control the use of their own streets and should not be required to come to Washington, DC, to defend a permit action for digging up a street, for improving or building a new utility also has great force and effect, Mr. President. I think it is a persuasive argument. So in order to try to balance the general authority of a single Federal Communications Commission against the specific authority of local communities, I have offered a second-degree amendment to the Feinstein-Kempthorne amendment. I hope that the sponsors of the amendment will consider it to be a friendly one. More often than not in this body, second-degree amendments are designed to totally subvert first-degree amendments to move in a completely different direction, sometimes to save Members from embarrassing votes. This is not such a case. I have read the arguments that were made by the two Senators who sponsored the first-degree amendment. I agree with them, but almost without exception, their arguments speak about the control by cities and other local communities over their own rights of way, an area in which their authority should clearly be preserved, a field in which they should not be required to have to come to Washington, DC, in order to defend their local permitting or ordinance-setting actions. I agree with those two Senators in that respect, but I do not agree that we should sweep away all of the preemption from an entire section, which is entitled ``Removal of Barriers to Entry''; that fundamental removal to those barriers, an action by a State or a city which says only one telephone company can operate in a given field, for example, or only one cable system can operate in a given field, should not be exempted from a preemption and from a national policy set by the Federal Communications Commission. [[Page S8213]] So this amendment does two things, both significant. The first is that it narrows the preemption by striking the phrase ``is inconsistent with'' so that it now allows for a preemption only for a requirement that violates the section. And second, it changes it by limiting the preemption section to the first two subsections of new section 254; that is, the general statement and the State control over utilities. There is no preemption, even if my second-degree amendment is adopted, Mr. President, for subsection (c) which is entitled, ``Local Government Authority,'' and which is the subsection which preserves to local governments control over their public rights of way. It accepts the proposition from those two Senators that these local powers should be retained locally, that any challenge to them take place in the Federal district court in that locality and that the Federal Communications Commission not be able to preempt such actions. So I hope that it is a way out of the dilemma in which we find ourselves, the preservation of that local authority without subverting what ought to be nationwide authority. It will be a while, I think, before this comes to a vote. I commend this middle ground to both the managers of the bill and the sponsors of the amendment. I hope that they will accept it. Mr. DORGAN addressed the Chair.

Mr. GORTON. Mr. President, I send a second-degree amendment to the Feinstein-Kempthorne amendment to the desk and ask for its consideration.

Mr. GORTON. Mr. President, I ask unanimous consent that we return to the Feinstein-Kempthorne amendment.

Mr. GORTON. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. GORTON. I made a unanimous consent request and the Senator from Arizona objected.

Mr. GORTON. I hope that the Senator will not object. The Senate has almost completed its debate on a Feinstein-Kempthorne amendment which was proposed last night. I have a second-degree amendment for that which I would like to get in so that the body [[Page S8212]] will understand exactly what it is going to be voting on on that issue.

Mr. GORTON. Mr. President, I ask unanimous consent that we return to the Feinstein-Kempthorne amendment.

Mr. GORTON. Mr. President, what is the pending business?

Mr. GORTON

Mr. GORTON. Mr. President, as one of the members of the Commerce Committee, who reached the decision to balance this legislation in the fashion that it appears here on the floor, and also as a Senator who has great respect for the views of the Senator from Nebraska, I must say that I find myself unpersuaded by his case--unpersuaded on a number of grounds. First, it is not necessary to bandy about the word ``bureaucracy'' to understand that the fundamental nature of this amendment is to substitute a required approval on the part of two very distinct Federal agencies with two very distinct roles for a single such determination, before a regional Bell operating company can go in to the long distance business. Now, Mr. President, there is no question but that the entry of a regional Bell operating company in the long distance business will be competitive in nature. The long distance business is highly competitive at the present time. Not just with that handful of large companies which constantly advertise in the newspapers and on television, but by dozens, if not hundreds, of smaller companies, as well. Now, it is true that those companies presently in the long distance business, naturally enough, fear the entry of the Bell operating companies into their business. They make the case--not entirely persuasively, but not entirely unpersuasively, either--that allowing the Bell operating companies into that business may give those Bells an unfair competitive advantage. It is in order to meet that argument, Mr. President--not the argument about local service, but the argument about long distance service--that this bill says to the Bell operating companies, ``No, you cannot start competing in that very competitive business unless and until your own system is open to those who want to provide competition where competition in large measure does not exist right now, in the local exchange service.'' It is to assure that companies now providing long distance service or cable television service or simply seeking to get into the long exchange business, are able to do so that the various conditions--some of which have been referred to by the Senator from Nebraska--are included in the bill. The goal of the bill, Mr. President, is to create added competition in both telephone fields, in both long distance and in the local exchange. Any additional requirement which slows down that process on both sides of the equations, seems, to this Senator, to be undesirable. So what the bill does is to set up a set of 14 reasonably objective conditions that must be met by the regional Bell operating companies to open up their local exchange before they could get into the long distance business and provide competition and, one hopes, lower prices. The committee was not absolutely satisfied any more than the Senator from Nebraska is absolutely satisfied that the simple mechanical meeting of those 14 conditions would, under all circumstances, be sufficient to open up the local exchange. So it added the public interest convenience and necessity condition, requiring the Federal Communications Commission, which almost from time immemorial, has been the Government entity and agency with expertise in this field, to determine in the broadest possible sense that the requested authorization was consistent with the public interest, convenience, and necessity. A test which has been a test utilized by that Commission ever since or almost ever since its creation. Mr. President, in adding the Department to this mix directly as a regulatory rather than as an advisory entity, the amendment, it seems to me, creates the worst situation, worse then abolishing the FCC and having this done only by the FCC, worse than leaving it the way it is in the bill at the present time. Because, Mr. President, the Attorney General expressly has advisory authority to the Federal Communications Commission in this connection. I suspect that in most cases, the Attorney General goes to the Commission and says, ``This is a terrible idea, to let this Bell into the long distance business.'' We think it is going to, somehow or another, create a tremendous monopoly. I strongly suspect that the FCC will listen to and abide by that advice unless, in its own greater expertise in the communications business, it feels that the Attorney General is flatout wrong, just does not know very much about this particular subject. The sponsors of the amendment, in their desire to have two different entities involved in this business, have really created a most curious division of authority. Where, in the bill as it stands without this amendment, the authority of the Federal Communications Commission in dealing with a determination of [[Page S8166]] public interest, convenience, and necessity, is essentially unlimited, this amendment deprives the Commission of the ability to consider the effects of the authorization in any market for which the authorization is sought, with respect to antitrust matters. Mr. President, it is very likely that may be the centerpiece of what the FCC would base its determination of public interest, convenience, and necessity on under normal circumstances. This mention of public interest, convenience, and necessity is carved out in order to be given to the antitrust division of the Office of the Attorney General. In other words, the FCC is really going to no longer be able to consider all of the elements which go into a determination that authorization is in the public interest, convenience, and necessity. Just last week, Mr. President, in balancing this bill, we turned down an amendment which would have stricken that authority. We did not feel, a majority of the Members did not feel, any more than a majority in the committee felt, that we could absolutely and under all circumstances rely on the 14 categories. So now, in the interests of speaking out on antitrust matters, the sponsors of this amendment were normally thought to be on this side of the debate, while those who sponsored last week's amendment were on that side, and the committee in the middle, are doing much of the work that the sponsors of last week's amendment sought to do themselves and were rejected in that course of action by, I believe, all of the sponsors and most of the supporters of this amendment. So, to recapitulate, this proposal deprives the Federal Communications Commission of authority it ought to have in order to give a new kind of authority to the Attorney General of the United States, a kind of authority that the Attorney General does not have at the present time. I want to go back. The Attorney General in this bill is to be consulted by the Federal Communications Commission, and in this bill the Attorney General is not deprived of any of the authority of that office with respect to monopolization or the enforcement of the antitrust laws. Just as it can stop a merger, if it finds that the ultimate impact of such authority is to create a monopoly, it may bring the same kind of litigation that it brought that resulted in the breakup of the old AT&T. But one further matter, as that is brought up as something which took place through the Department of Justice, not through the Congress, the Department of Justice did not determine to sue AT&T to break up that monopoly in 90 days. And here in this bill the Attorney General is given only 90 days to make this determination, not of something that has happened in the past--which is fairly easy to determine--but something that might possibly happen in the future. I do not believe that the authority given the Attorney General in this bill can effectively be used in a period of time like that. It is clear that we now have two different Federal entities under this amendment having authority over the grant of this authorization based on two quite different sets of tests and that, apparently, they will not relate to one another. Finally, it is clear to this Senator, at least, that it is more likely than not that this added authority, this two entities of the Federal Government rather than one, is likely to slow down the creation of competition, certainly in long distance, and very unlikely to speed it up in connection with the local telephone market. So, I would summarize by saying I do not believe the committee on which I serve and on which this structure was worked out by the careful work of the chairman and the ranking Democratic member, and for that matter almost all the members of the committee, is some kind of jerry- built political compromise. It is the result of careful and sober thought as to what was the best system available for reaching two goals: one, the creation of competition in the most rapid possible fashion, both in long distance and in the local exchange; and at the same time the prevention of monopoly and the service of the public interest. So, my own summary is that the bill, as it stands, is greatly superior, from the perspective of the public interest and competition and consumers, than it would have been had the McCain amendment been adopted last week striking the public interest section and, equally, than it will be if this amendment is adopted putting two different entities of the Federal Government into the same mix, artificially divorcing them from one another, frustrating the traditional role of the Federal Communications Commission and, in my view, frustrating the development of new technology and of competition. For those reasons I trust when the distinguished chairman of the Commerce Committee moves to table this amendment tomorrow, that his motion will be successful.

Mr. GORTON. I do not believe I have. I would hate to make a totally generalized statement on that, but certainly I would say not in the memory of my experience as State attorney general nor did I find the Department of Justice have such authority. I yield the floor. Mrs. FEINSTEIN addressed the Chair.

Mr. GORTON

Mr. GORTON. Mr. President, it may well be that the two distinguished southern managers of this bill, the Senators from South Dakota and South Carolina, may never have imagined that this day would come. This is probably the first occasion on which a thorough philosophical change in direction in communications law has been debated on the floor of the U.S. Senate since the Communications Act of 1934, some 61 years ago. In 1934, of course, communications was via old-fashioned dial or operator-assisted telephone through radio stations and through Western Union telegrams. The technological situation of the time called for monopoly communications systems and the necessity of regulation of those systems in the public interest to see that prices were not too high. Today, of course, technology is so totally and completely different that an entirely different regime is needed. Perhaps the greatest difficulty in bringing this day on which we start this debate to pass has been the fact that in each long set of hearings in the Senate Commerce Committee over a year or more, each tentative set of conclusions on the part of these two Senators, and others, by the time those conclusions had been reached, the technology has gone beyond those conclusions. So there seems to be a broad agreement across both parties and many political philosophies that there should be a large degree of deregulation as a part of any bill, based on the proposition that we cannot tell how much the technology will change in the next 6 months, much less the next 10 years, and that we should accommodate it without constantly trying to regulate it through some form of statutory language. That is the philosophy of this bill, a philosophy of competition rather than of regulated monopoly. It has been a difficult process and it is likely to be a difficult process for the next 3 or 4 days. So rather than repeat anything that the two leaders in this debate have said, I would simply like to say from the perspective of this Senator, as a member of the Commerce Committee, there have been three guiding principles in dealing with the many conflicts among groups who would like to provide communication services, and those three guiding principles are, of course, deregulation, competition and the interests of the consumers, the users of these various services. Mr. President, there are a number of areas covered by this bill in which those three interests lead to the same conclusion: Deregulation will promote competition, competition will promote the consumer interest. Those parts of the bill probably will not be the subject of much discussion during the course of this debate. They have been worked out. But the three considerations are at least slightly different and move in slightly different [[Page S7897]] directions. Because of the nature of the communications industry, which still includes huge regulated monopolies, a total and complete deregulation at least carries with it the risk not of competition but of an unregulated monopoly substituting itself for a regulated monopoly. So there must be a degree of caution in the speed and the completeness of any kind of deregulation. Almost always, it seems to me, Mr. President, that competition is in the consumer interest, though ironically many of the so-called organized consumer groups have little faith in competition and in the free market and believe in various forms of state socialism and want in many respects more regulation. I believe, Mr. President, that those so- called consumer representatives rarely represent the actual consumer interest. So as we go through this debate over particular proposed amendments during the course of the next week, it seems to me we all have to attempt to judge them on the basis of those three principles: Are they deregulatory in nature in a constructive fashion that is consistent with the march of new technologies? Do they promote competition? And are they in the consumer interest? Mr. President, there is only one other major point that I want to make at this time, and that is that of all of the proposals with which I have had to deal in my career in the Senate, this is perhaps the most important for the future of our economy. Perhaps as much as 20 percent of our economy is connected with communications in some respect or another. And, of course, the lobbying, the attempt to influence all of us on the part of people who are in the communications business or wish to be in the communications business is fierce, is overwhelming in nature. At the same time, the actual consumers of these goods, our constituents, who are not in the business, are almost totally silent. I have hardly gotten a handful of telephone calls or letters from ordinary citizens about this bill. It is too big. It is too complicated. It is about the future. It is very difficult to come up with an intelligent opinion off the top of one's head on some of the particular controversial areas in it. And so it is up to us to weigh the consumer interest as we work our way through this legislation, along with those features that will lead to competition, generally speaking, through deregulation. My observation is that the large companies and groups which are already in the communications business do sincerely favor competition. But, generally speaking, they would like to create a competitive atmosphere in which they are at least even, and perhaps have a little bit of an advantage. And so the mythical even playing field is something to which all give lipservice but each defines in a different fashion. Now, the new companies, the entrepreneurs, those who are just beginning in the field, or wish to get in the field, simply want it opened up. They want to be able to compete, where today they cannot. Few of them are large enough to demand some kind of special privileges or another. And we need to encourage both. We need to encourage the continued investment in this new technology on the part of those companies that have been in the business literally forever. We cannot lose their expertise and that tremendous investment. We need to see to it that those large companies are able to compete against one another in the consumer interest. At the same time, we also need to see to it that the niche companies, the new companies, the people with bright new ideas, are able to get into this business and if they are tremendously successful, become large companies as well. So, Mr. President, we search for deregulation, we search for competition, and we search for the consumer interests. I think we all do so sincerely, determined that we need to make major changes, and perhaps with a degree of humility, that we do not know what is going to happen tomorrow, and we wish to craft an outline which will allow tomorrow to take place without our having crushed it by unanticipated consequences to the actions we take here. I want to close by congratulating both of my colleagues, the Senator from South Dakota and also the Senator from South Carolina, who has spent a major part of his career in this field and who now has, I think, the enviable task of attempting to manage this legislation wisely and successfully to a conclusion that will benefit all of the American people. Mr. DOLE addressed the Chair.