T. Gorton

Mr. GORTON

Mr. GORTON. Mr. President, this morning the Senate will immediately resume consideration of the Department of Defense authorization conference report. There are 3 hours remaining for debate, with a vote occurring on adoption of the conference report at 12 noon. Following that vote, the Senate may begin consideration of S. 442, the Internet bill, under the consent agreement reached last night. The Senate may also begin consideration of the Cold Bay-King Cove legislation under a 6-hour time agreement, or any other legislative or executive items cleared for action. Therefore, Members should expect rollcall votes throughout Thursday's session as the Senate continues to consider important legislation prior to sine die adjournment. I thank my colleagues for their attention.

Mr. GORTON

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

Mr. GORTON

Mr. GORTON. Mr. President, if I may join my colleague from Washington state, this Decision Document became the basis for the local cost- sharing agreement signed by federal, state, and local officials in April, 1986. This agreement was recognized by Congress in the Water Resources Development Act of 1986. It has come to attention of Senator Murray and I that the Corps is uncertain whether the levels of protection in the Decision Document are discretionary or required.

Mr. GORTON. My colleague from Washington is correct. In several cases work by the Corps or its contractors appears to have created new problems. In the case of the Coweeman River, over one mile of volcanic sediment that backed up in this tributary. Initially ignored, this sediment now poses a serious threat to the community of Kelso. The Corps is currently scheduled to initiate a two-year study of these hazards and levels of protection in fiscal year 2000. It makes sense to all concerned that these matters be addressed as soon as possible.

Mr. GORTON

Mr. GORTON. Mr. President, my constituents in the Pacific Northwest and the Members of this body know that I am not a fan of the current version of the Endangered Species Act, a law that has proven to be a failure not only for endangered species but also many rural communities and private property owners as well. In fact, I have spent much of my time as a U.S. Senator looking for ways to improve that law. The Endangered Species Act has inflicted grave harm on natural resource industries based in the Northwest with little to show in return, especially if we attempt to measure the law's success in bringing salmon back to Northwest rivers and streams. In fact, the Puget Sound region faces the possibility of more ESA listings over the next year. Local leaders in the Pacific Northwest looked to the Washington State congressional delegation during this year's appropriations process for funds to implement the salmon recovery plan personalized to respond to our unique needs in the Puget Sound region. I believe that we will be successful. The local scientists and leaders know that a creative plan that is supported by the communities surrounding the Puget Sound area will be the best chance we have to achieve success and avoid the heavy hand of the Endangered Species Act, a law implemented by D.C. bureaucrats with plans and standards that may not fit with the challenges and competing interests that must be balanced in the Northwest. As my constituents put all of their energies behind this last-ditch effort to avoid the crushing impact of yet another listing in the Pacific Northwest, another group has been using every tool at its disposal to avoid the implications of the Endangered Species Act on its activities. Puget Sound and Columbia River Indian tribes in Washington and Oregon are proclaiming themselves exempt from the constraints already imposed on their commercial fishing for salmon and steelhead by the Endangered Species Act. As a result of Clinton administration Executive and Secretarial orders, Pacific Northwest tribes believe they should be able to decide for themselves whether or not to restrain their commercial gillnetting activities, while at the same time nontribal commercial and sport fishers face the full impact of the Endangered Species Act in the form of extensive fishing closures. On June 5, 1997, the Secretaries of Commerce and Interior issued a joint Secretarial order declaring that Indian lands and activities are not subject to the same controls as Federal public lands and privately- owned lands when it comes to enforcement of the ESA. This Secretarial order, signed by Commerce Secretary William Daley and Interior Secretary Bruce Babbitt, was the result of more than a year and a half of negotiations among Clinton administration, Federal Government agencies, and Indian tribes from across America. President Clinton's similar Executive order was signed on May 14, 1998. Mr. President, I am frustrated and dismayed. While I have identified many flaws in the D.C.-driven implementation of the Endangered Species Act, I also strongly believe this law will have no chance of success if the administration is allowed to decide certain segments of the population and certain interest groups are not bound by it. The Members of this body have heard me criticize the enormous amount of money spent without result by the Federal Government in an attempt to save species of Pacific Northwest salmon and steelhead. In fact, it is estimated that each endangered or threatened fish preserved in the Northwest may have cost tens of thousands of dollars, if we consider the amount of money spent on recovery efforts as compared with our level of success. We must get a better bang for our buck, and I don't see how we can improve the return from our investment unless everyone in the Northwest complies with the restrictions imposed by the Act. In response to the unilateral actions taken by the administration over the last 2 years, which I consider beyond the scope of Executive and bureaucratic authority, I included a provision in this and last year's Interior appropriations bills expressing the contrary intent of Congress. The Endangered Species Act, as written, should apply equally to all Americans. Before the negotiations that resulted in the Secretarial and Executive orders I mentioned, the Federal Government's position was that ``ESA applies to Indian Country, period.'' By the time negotiations were completed, however, the Clinton administration had capitulated to tribal demands that the tribes decide for themselves, on a case-by-case basis, whether or not to respond to the conservation principles of the ESA. How can the Endangered Species Act work unless tribal fisheries share equitably in the conservation burden? The Clinton administration is pursuing a policy of preferential treatment. Under this policy, the conservation burden falls mainly upon non-Indians. According to the orders released by the administration, restrictions on Indian harvest of endangered and threatened species, both on and off-reservation, can be considered only if ``the conservation purpose of the restriction cannot be achieved by reasonable regulation of non-Indian activities'' and ``voluntary tribal measures aren't adequate'' to achieve ESA goals It certainly wasn't Congress' intent when the Endangered Species Act was passed into law that any group of Americans would be exempted from its provisions or that one group should have to bear conservation burdens greater than another group. And Members of this body know that non-Indians certainly can't stave off the impact of the Endangered Species Act by pursuing ``voluntary'' recovery plans after a species has been declared threatened or endangered. The efforts of the administration to exempt tribes from the Endangered Species Act don't stop at Secretarial and Executive orders. The National Marine Fisheries Service recently issued a draft rule modifying existing tribal exemptions under the ESA. Not only will tribes be able to continue ``ceremonial and subsistence'' take of threatened or endangered species in tribal fisheries, the tribes also will be able to engage in ``commercial'' take of threatened species, such as chinook salmon and steelhead trout. Allowing a tribal commercial exemption from the ESA would dramatically reduce the likelihood of recovery for threatened or endangered salmon and steelhead species. Non-tribal commercial and sport fisheries for chinook and coho salmon have been significantly curtailed in Puget Sound and on the Columbia River, and it is likely that chinook harvesting could be shut down entirely by next year. Yet the tribes and administration proclaim the tribes have a treaty right to continue to fish as they always have, regardless of the conservation needs of the fish. This is very unfair and contrary to Supreme Court decisions. The tribes should bear an equal share of the conservation burden, just as they enjoy a 50-percent share of the harvest when fish numbers are plentiful and healthy. Harvest restrictions necessary under the terms of the ESA must be applied in an equitable manner that is fair and consistent for all user groups, tribal and nontribal, if we are to meet conservation goals and see recovery of endangered salmon and steelhead in our lifetimes. Just a few weeks ago, the tribes, with the support of the administration, attempted to take their circumvention of the Endangered Species Act one step further. Fortunately, U.S. District Judge, Malcom Marsh, in Portland, OR, denied the request of the Federal Government and five Pacific Northwest tribes to reopen the tribes' commercial harvest season for fall chinook salmon. This opening for the tribes, requested by the Clinton administration, would have taken place while all types of nontribal fisheries were closed. The States of Washington, Oregon, and Idaho opposed the tribal fishery, noting that the Federal Government had issued no biological opinion on what effect the tribal fishery might have on ``threatened'' Snake River and Columbia steelhead. Judge Marsh agreed with the States' contention that National Marine Fisheries Service had failed to issue a biological opinion showing tribal gillnet fishing wouldn't harm steelhead stocks protected under the ESA. Judge Marsh made the following statement in his ruling: ``While I am highly sensitive to the importance of the tribes' treaty fishing rights, I am also mindful of the fact that no one will be fishing if the resource is depleted to the point of extinction.'' Instead of being concerned primarily with the long-term preservation of the listed steelhead, the Judge stated, ``The Federal Government appears to be more concerned with what the tribes are willing to accept as reductions to their fall commercial harvest than they are with the needs of the listed species.'' Judge Marsh concluded, in his ruling against the tribes and Federal Government: ``Federal agencies may not circumvent the unambiguous statutory mandate of the ESA simply to avoid more difficult issues or to appease one interested party at the expense of the others. Regardless of the result, the process must comply with the law and I fine the proposal submitted to me [by the Clinton administration and the tribes] . . . fails in that respect.'' Yet, the tribes contend that, despite Judge Marsh's ruling, they can keep fishing. All that State governments can do is ask the public not to buy the fish the tribes catch, since technically they would be fishing under the ``ceremonial and subsistence'' exemptions to ESA. As a practical matter, however, in this technological age of flash freezing and vacuum-packaging, it is impossible for the States meaningfully to enforce this prohibition on the commercial sale of endangered wild fish netted by the tribes in their ``ceremonial and subsistence'' fisheries. The National Marine Fisheries Service and the Clinton administration have embarked upon a policy doomed to produce more strife and fewer fish for future generations of Indians and non-Indians alike. The solution to this problem is to pass legislation I introduced in July: the Tribal Environmental Accountability Act (S. 2301). This bill prohibits a tribe from claiming sovereign immunity as a defense if a tribe is a defendant in a case brought to enforce a Federal environmental law, such as the ESA. This much-needed legislation would allow tribes to be sued to mandate compliance with Federal environmental laws to the same extent that State governments or private entities can be sued. If the administration is unwilling equally to enforce the mandates contained in the Endangered Species Act across all user groups, then other interest groups must have the opportunity to pursue enforcement of this law, no matter how flawed it may be, in the courts of the United States. Mr. President, I suggest the absence of a quorum. the PRESIDING OFFICER (Mr. Enzi). the clerk will call the roll.

Mr. GORTON

Mr. GORTON. First, Mr. President, I ask unanimous consent that the following Senators be added as cosponsors of S. 2182, the Private Use Competition Reform Act of 1998: Senators Kyl, Leahy, Grassley, Smith of Oregon, Wyden, and Hollings.

Mr. GORTON

Mr. GORTON. Mr. President, I rise to engage the chairman of the Subcommittee, Senator Domenici, in a brief colloquy. It has come to my attention that, due to some confusion regarding the funding of an on- going Section 1135 ecosystem restoration project of a similar name, the conference report to accompany the Energy and Water Development Appropriations bill eliminated funding for the Duwamish and Green River Basin study. Would the chairman agree that neither the Committee nor the conferees are opposed to the ongoing Duwamish and Green River Basin study?

Mr. GORTON. Would the Chairman also agree that the Corps of Engineers should seek a reprogramming of funds to keep this important project on schedule and, if sought, would the chairman be inclined to approve such a request?

Mr. GORTON

Mr. GORTON. Mr. President, it looks like the administration has just experienced a tardy but welcome revelation, Mr. President. After 6 years of coddling its rulers and selling out U.S. exporters, some in the administration are now beginning to realize that ``engagement'' has not moved China toward free trade but to greater protectionism. The $50 billion a year and growing bilateral United States trade deficit, the largest with any trading partner in the world but Japan, wasn't enough. The continued and egregious market access barriers to U.S. agricultural products weren't enough. The defiant stance against WTO negotiators wasn't enough. And the flagrant violation of the intellectual property rights of the American software and entertainment industries wasn't enough. But finally, China has pushed at least one member of the administration too far. The straw that broke the camel's back was China's decision to ban joint ventures in the telecommunications industry. In Beijing last Tuesday, David Aaron, Undersecretary for International Trade at the Department of Commerce, became the first American official in nearly a decade to speak openly about China's protectionist trade policy and to threaten retaliation. Aaron is quoted in last Wednesday's Wall Street Journal as saying of the long list of trade barriers erected against American imports in China, ``The list keeps getting longer, and nothing gets struck off it.'' He continues, ``China is taking the trade relationship for granted. They want to export to us but not buy our products.'' Yes; that is precisely what I have been arguing for 3 years. But an administration wedded to a policy of ``engagement'' with China no matter how unproductive refused to believe it until now. I cannot begin to express the sense of vindication I had when reading an article in last Wednesday's Washington Post that hinted at a new administration trade policy with China. Instead of continuing to hope that China's desire to join the community of free trading nations in the WTO would outweigh its protectionist tendencies, the administration is finally ``threatening retribution in a much more concrete arena--the United States market . . . '' All well and good, but a day late and a dollar short. While President Clinton dismissed those of us in the antiengagement camp as ignorant, antifree traders, while the administration allowed the Government of the People's Republic of China to walk all over the United States for 6 years, and while the United States trade deficit ballooned out of control, my home State of Washington suffered the consequences. Since 1972, China has refused to allow Pacific Northwest wheat into its market. This nontariff barrier erected against our wheat is based on a bogus phytosanitary concern with the spread of a wheat disease called TCK smut. For more than 20 years, the United States has presented Chinese officials with irrefutable scientific evidence which proves conclusively that there is absolutely no risk of introducing TCK smut into China. China's ban on Pacific Northwest wheat is in violation of international standards requiring that import barriers imposed in the name of food safety be based on sound science. But it is protectionism, not sound science, that serves as the basis for China's ban on Washington State wheat. For the past 3 years, I and several of my colleagues from the Pacific Northwest, have written to the President and Vice President to ask for assistance in tearing down this deplorable trade barrier. Our entreaties have been totally ignored, Mr. President, and the wheat farmers in my home State of Washington have suffered at the hands of the administration's weakness. Instead, the administration turned a blind eye to the wheat ban and hundreds of other Chinese protectionist policies, arguing all along that continuing to grant most-favored-nation trading status to China was the best and only way of improving our trade relationship with China. In addition, our apples are barred from Chinese markets. Our insurance firms can't do business in China. Our telecommunications equipment is barred. The Chinese are not stupid. In fact, one might argue that they are brilliant strategists, having convinced the United States to sit on its hands while China pillaged the United States market. That the President, the leader of the strongest nation in the world, rolled over and played dead in the face of Chinese threats is an embarrassment to the United States. He betrays the free people of Taiwan--who do buy our goods and services. But he will sell China what it will gladly purchase--our defense secrets. He allows our intellectual property to be stolen with impunity. The President knows that China is the world's largest emerging market. With a billion potential consumers for United States goods and an insatiable need for infrastructure improvements and technology, the Chinese market is among the most appealing in the world. In the fact of this prize, the administration simply caved in to the demands of China's dictators. What the administration has ignored until this week, is that the United States is China's most important market as well. In fact, the United States absorbs 30 percent of China's exports. And today, with the financial crisis having drastically decreased demand throughout Asia, the American market is even more important to China. In its rush to expand its economy and catch up with the rest of the world, China, since the late 1980's, has embarked on a full scale effort greatly to increase its overseas exports and thus to foster an economic boom within its own borders. Without the United States market, China's economic growth would come to a screeching halt. That is why, Mr. President, I have argued for 3 years that we should use the United States market as leverage in our trade disputes with China. But the administration refused to accept the logic of this strategy--until, that is, Secretary Aaron spoke so frankly in Beijing on Tuesday. I implore the administration, with its newfound wisdom, to take Aaron's advice and start tomorrow not just to threaten, but to impose retaliation against China unless it makes dramatic changes in its trade policy immediately. To make such threats without following through would be disastrous. The administration must act on its words and impose trade restrictions on China immediately unless it takes drastic steps to eliminate market access barriers to United States exports. The administration should start with the most egregious barrier of all, the ban on Pacific Northwest wheat. If, by next week, China has not succumbed to the irrefutable scientific evidence and allowed Pacific Northwest wheat into its market, the United States must take retaliatory action. If China won't let our wheat into its market, we shouldn't let China's textiles into our market. It is a simple solution, and it will work. China wants our markets. It won't risk losing them, even if the price is open markets to American goods and services.

Mr. GORTON

Mr. GORTON. Mr. President, I want to express my agreement with this amendment and also express my admiration for both the dedication and the persistence of the Senator from North Dakota. It is a quality in him I greatly admire. We did start from very, very different points of view on this subject. Mine emphasized to the greatest extent free market principles and a lack of interference, whenever possible, with business organizations; his, a deep concern, and an appropriate concern, for smaller cities in which the kind of competitive advantage that my major city, Seattle, clearly has are simply not present. From the beginning, I have thought that his goal was an appropriate one, to try to see to it that better service was provided his constituents, was proper public policy, and at the same time feared the constrictions that some elements of his amendment imposed. I think at this point we have something with which we can live temporarily. It is not all that the Senator from North Dakota wants. I don't know everything about this field myself. One element of this amendment will try to get us the most objective possible information about the nature of the problem and perhaps the best solutions. We will be back--even if this bill passes in its present form--we will be back with another FAA bill in 2 years, all of us with much more knowledge. So my tribute to the Senator from North Dakota for his dedication to a cause that is significant. I hope we have done it in a way that will not damage the competition among major airlines or minor airlines, and in a way that will be of some real benefit to his constituents and to many other people in cities across the country in similar areas. I approve of the amendment.

Mr. GORTON. I move to lay that motion on the table. The motion to lay on the table was agreed to. Mr. McCAIN addressed the Chair.

Mr. GORTON

Mr. GORTON. Mr. President, the Death on the High Seas Act was either passed or last amended some 70 years ago. It is an act relating to exactly that--death on the high seas--that sets out limitations on damages that can be recovered in fault-based actions for such deaths. Obviously, the absence of any change in those limitations can be said to be something of an anachronism at this point. The Death on the High Seas Act does not limit the dollar amount of actual economic damages that can be recovered. The Death on the High Seas Act applies equally to death over the seas or on the seas as a result of an aircraft accident. The rationale, of course, for that kind of limitation on damages is the vital importance to the people of this country, of the maritime transportation of goods and passengers, and the air transportation of goods and passengers over the seas of the world. The view, I am sure, of those who passed the act in the first place was that this was such an important part of our society, that it was so important to encourage the development of efficient, swift, and inexpensive transport of goods and passengers, that there should be certain limitations to legal actions resulting in deaths on the high seas. The bill to which the Senator from Pennsylvania refers was the subject of a hearing in the Commerce Committee. That bill was not reported favorably or at all by the committee. So some portion of it or all of it was originally posed as an amendment to this bill on the reauthorization of the Federal Aviation Administration, to which this subject is not clearly relevant. The proponents of S. 943 and of the original form of this amendment wanted to remove all limitations--both for noneconomic damages and for punitive damages--from any such actions. That seemed to me, and continues to seem to me, to be an inappropriate response. The necessity for transportation by air over seas remains absolute in the world in which we live, and to subject either aircraft manufacturers or airlines to unlimited amounts of noneconomic damages and to punitive damages would have a clearly negative impact on the design and maintenance of airliners and of the airlines that operate. Flight 800 is not a Ford Pinto. All airlines and all aircraft manufacturers, domestic and foreign, are required to meet extraordinarily strict safety standards imposed by the Government of the United States. After 2 or 3 years of study, the greatest experts in the world are not certain of the cause of that crash. They think they know, but if one thing is clear to the ordinary observer, the crash did not take place due to the negligence of the manufacturer or of TWA. Nevertheless, in the fault-based litigation field which afflicts the United States, there is little doubt that a number of juries by trial lawyers could be persuaded that negligence that no one could have determined in advance was, in fact, present, and these damages would thereby be unlimited. So as the Senator from Pennsylvania has so graciously pointed out, we have here a compromise. I think that it is appropriate that certain noneconomic damages be recoverable. I think they will be recoverable and will be recovered even though in the normal sense of the word ``negligence'' against any of the defendants, it will never actually be proven. But I do not think that they should be unlimited. I do not think that cases like this admit to punitive damages under any conceivable set of circumstances. What this bill does is two things: It allows the recovery of certain noneconomic damages for the loss of care, comfort, and companionship of those who were killed in the aircraft crash to which this bill is retroactively applicable, and in future aircraft accidents, up to the amount of actual economic damages or $750,000--whichever figure is larger. I believe that is a generous award and a generous limitation for aircraft accidents. The Senator from Pennsylvania feels they should be unlimited, and he represents a strongly held point of view held by a large number of other Members of this body. But this is a legislative compromise. These damage limitations are far greater than they are under present law. They are far less than the American Trial Lawyers Association would like. It does seem to me that in a body that has struggled with product liability legislation for the better part of two decades, and which includes a majority of Members who feel that certain limits should be placed on product liability litigation, but whose goals have been frustrated through filibusters and the like, that to add another field to the kind of unlimited litigation that so plagues society at the present time and has so troubled debates in this body, not just over product liability but over medical malpractice as well, that such an extension would be highly unwise. As a consequence, the Senator from Pennsylvania and I disagree on the general philosophy of the vehicle with which we are involved here. But I think that, in the best traditions of the Senate, our disagreements have been resolved, at least for the time being, by a compromise--a compromise that has limits --limits that I think are perhaps too high on the kind of damages that can be recovered and implicitly as to whether they should be recovered at all under the circumstances, and the belief of the Senator from Pennsylvania that standard negligence rules ought to apply here as they do in many other areas. We have reached compromise on this. He has proposed an amendment which he doesn't completely agree with himself, but he thinks it represents an improvement. And I agree with an amendment that I do not completely disagree with and one I think is relatively too generous. It may well be that the Senator from Arizona thinks this will be the last amendment on this bill and we will move forward from here. I guess we can say that at some future time there will be another contest during which we can examine the premises of our fault-based system of liability and its relationship to aircraft accidents at greater length and at more leisure. For the time being, I thank the Senator from Pennsylvania and the other Senator from Pennsylvania, Mr. Santorum, who first brought this to my attention, and the many others who worked very hard to reach an accommodation. The senior Senator from Pennsylvania has done a very good job on a cause in which he believes, even though he didn't get everything he wanted. Mr. SPECTER addressed the Chair.

Mr. GORTON

Mr. GORTON. Mr. President, few of my colleagues would dispute the notion that capitalism is the foundation of America's economic success. Under capitalism, competition inspires innovation. Innovation led in the 19th Century to the industrial revolution, and in the 20th Century to the digital age. These developments have made the United States the richest, most successful nation in the world. But this Administration seems to distrust our capitalist, competitive system and wants to replace it with some sort of ``third-way'' in which government bureaucrats make major decisions about what innovations will be allowed in our economic system, and when. I refer particularly, Mr. President, to the Justice Department's vendetta against Microsoft, a company that has had the ingenuity and determination to achieve the American dream. Against the odds, one man with a good idea turned a workshop in his garage into the most successful high technology company in the world. The Administration is now on a path to destroy not only the man and his company but to destroy the dream as well. Assistant Attorney General Joel Klein, head of the Justice Department's Antitrust Division, has declare war on success in the name of antitrust law. According to Joel Klein's world view, it is the duty of the United States government to protect not the consumer but the company that cannot compete on its own merits. Mr. Klein has made his ambition abundantly clear. When he testified before the Senate Judiciary Committee in June he said, ``We reject categorically the notion that markets will self-correct and we should sit back and watch.'' Instead, Mr. Klein believes the government should control every move of America's most successful and innovative companies. What candidate for president ran on this platform? The American people were not informed that free markets were to be abandoned as our principal economic guide. Instead of allowing the best man, or in this case the best company, to win, the Justice Department wants to control the market and dole out slices of it to companies of its choice. This is anathema to the free market, Mr. President. The Department's case, after all, is merely an attempt to give Netscape and other Microsoft rivals a leg up in the ongoing battle for market share in the software industry. Microsoft has earned its current prominence in the software industry through hard work, innovation, and consumer choice. The company has been successful because it has had better ideas and more efficient means of turning those ideas into superior products. Consumers in the United States and throughout the world simply prefer Microsoft products. But jealous rivals who have not reached the same level of success have now enlisted the Justice Department to give them what they and the Administration believe is rightfully theirs--more market share. These rivals, I fear, may soon regret ever having opened this Pandora's box. For a precedent may have already been set. That precedent is that government intervention in the market, in the absence of consumer complaint or dissatisfaction, is acceptable. That is why I speak here today, Mr. President, as one in a growing number of voices in America in firm opposition to the Administration's case against Microsoft. As I see it, the Administration is not working for the greater good, but for its own good. Those at the highest levels of this Administration believe they, not the market and certainly not consumers, know what is best for the nation. Rick Rule, former Assistant Attorney General for Antitrust under President Ronald Reagan, summed it up best when he said, ``The Hubris reflected in the government's case against Microsoft is monumental.'' This is just the beginning, Mr. President. Yesterday, at the Upside Conference, a meeting of high-tech industry leaders here in Washington, Roberta Katz, General Counsel for Netscape, said of the government's case against Microsoft, ``This is about a lot more than just Microsoft.'' To Ms. Katz I say, be careful what you wish for, be very careful what you wish for. Today the government's target is Microsoft, but tomorrow, it could very well be Netscape. The Antitrust Division, in filing its case against Microsoft, is working to justify an expanded role for government in the high-tech industry. The further its tentacles are allowed to reach into high-tech market, the tighter its grip on the industry will become. In fact, at a hearing tomorrow before Judge Jackson, the Justice Department will request that it be allowed to expand the scope of its case against Microsoft. There are two explanations for the Justice Department's motives; both are troubling. The first is that the Antitrust division is seeking to increase the aspects of the high-tech industry over which it will gain control if it wins the case. The second is that the Division is becoming increasingly desperate to find an issue, any issue, on which is can prevail in court. The first point should be of no little concern to Ms. Katz of Netscape and her counterparts at all the other high-tech companies cheering the Justice Department on. But it is the second point on which I would like to expand. The Antitrust Division knows that its case against Microsoft is literally falling apart at the seams. As my colleagues will recall, on June 23 a three judge United States Appeals Court panel overturned the preliminary injunction issued against Microsoft last December. The heart of the injunction, and the heart of the Department's current case against Microsoft, is the company's decision to integrate its web browser into its Windows operating system. As soon as the Appeals Court ruled that the integration of browser technology into Windows as not a violation of U.S. antitrust law, Joel Klein started scrambling frantically for other claims to make against Microsoft. If the Administration's concern was truly that Microsoft was acting illegally in integrating products into Windows, the Justice Department would have and should have dismissed its case then and there. But it didn't. Joel Klein continued attempts to drag more and more issues into the case is telling, Mr. President. Those attempts are a clear sign that the government's real beef with Microsoft is its size. The government can't stand the fact that Microsoft is successful. Microsoft, in the eyes of the Administration, is just too big. So the Justice Department will do everything it can to paint Bill Gates as the bad guy. As Holman W. Jenkins, Jr. aptly described it in an editorial in Wednesday's Wall Street Journal, Joel Klein ``has spraypainted the world with subpoenas, calling companies to testify about every failed and not-yet-failed collaboration between competitive allies and allied competitors in the computer industry.'' the strategy, according to Rick Rule, is ``the old plaintiff's trick of throwing up lots of snippets of dialogue that try to tar the defendant as a bad guy.'' Aside from all the legal commentary, the real issue, Mr. President, is that the Justice Department's case against Microsoft is a bad one. Joel Klein knows it, the high-tech community knows it, and I know it. No legal wrangling can disguise the fact that what the Administration is doing is wrong. It is not only wrong in the sense that the Justice Department will probably lose in the end. But it is wrong in the sense that the very premise on which it stands is at fundamental odds with the free market capitalism that has made this nation great.

Mr. GORTON

Mr. GORTON. Then what is the matter before the Senate at this point?

Mr. GORTON. Mr. President, has all time now been used on this amendment?

Mr. GORTON. I have been in the Chamber through most of this debate as I am the manager of the bill under discussion now. I believe that I am the only one, at least on this side of the issue, who has no immediate constituent interest in the subject. But I do have certain observations from listening to the debate on the part of others. The Senator from Oklahoma, Mr. Nickles, mentioned at one point that the Minerals Management Service had said that this was a revenue- neutral proposal, although in fact it seems not to be that case. The proponents of this amendment emphasize that there is a lot of money involved here for schools and for parks and for other purposes. It occurs to me that if this is a debate over revenues to the Federal Government, we are in effect talking about a tax, a tax on certain companies engaged in the oil business. And if we are speaking about a tax, it seems to me we ought to be deciding that question here in the Congress of the United States. Under our Constitution, taxes are not levied by regulatory agencies of the Government. They are determined and they are levied by the Congress. If, in fact, this amendment will produce tens of millions of dollars for various governmental purposes, then it is inevitable that someone is going to pay for those purposes. One of two things is going to happen, it seems to me. And one of my colleagues can correct me if I am wrong. Either it will be reflected in the price of gasoline and other petroleum products that every consumer in the United States pays and will be in effect an increase in the gas tax, or if these companies can simply import more and produce less domestically, it will simply drive American producers out of business because their cost of business will be increased. But one of those two consequences seems to me to be inevitable. Either this is going to be a tax on the American people by increasing the cost of their gasoline, or it is going to increase our dependence on foreign oil and drive American producers out of business. I think that conclusion is absolutely inevitable. I think that is a policy decision that should be made by the Congress of the United States and not by an obscure Federal agency, and for that reason I oppose the amendment.

Mr. GORTON. We yield back that 8 seconds. What now is the order before the Senate?

Mr. GORTON

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

Mr. GORTON. Objection.

Mr. GORTON

Mr. GORTON. Objection.

Mr. GORTON. I object.

Mr. GORTON. I object.

Mr. GORTON

Mr. GORTON. Mr. President, last year, Congress and the President agreed to provide $48 billion over the next 10 years as an incentive to states to provide health care coverage to uninsured, low- income children. To receive this money, states must expand eligibility levels to children living in families with incomes up to 200% of the federal poverty level. Washington State has a strong record of ensuring that its low-income kids have access to health care. Four year ago, my state decided to do what Congress and the President have just last year required other states to do. In 1994, Washington expanded its child Medicaid eligibility level to 200% of the federal poverty level (FPL) all the way through to the age of 18. During the negotiations of the 1997 Balanced Budget Act (BBA), Congress and the Administration recognized that certain states were already undertaking Medicaid expansions up to or above 200 percent of FPL, and that they should be allowed to use the new SCHIP funds. Unfortunately, this provision was limited to those states that enacted expansions on or after March 31, 1997 and disallowed Washington from accessing the $230 million in SCHIP funds it had been allocated through 2002. As a result, Washington State cannot use its SCHIP allotment to cover the 90,000 children currently eligible, but not covered for health care at or below 200 percent of poverty. Exacerbating this inequity is the fact that many states have begun accessing their SCHIP allotments to cover kids at poverty levels far below Washington's current or past eligibility levels. The bill I am introducing today, along with Senator Murray, corrects this technicality and is a top priority for the Washington State delegation as we near the end of the 105th Congress. Congresswoman Dunn has also introduced a companion measure in the House of Representatives that is cosponsored by the entire Washington delegation. This bipartisan, bicameral initiative represents a thoughtful, carefully-crafted response to the unintended consequences of SCHIP and brings much-needed assistance to children currently at-risk. Rather than simply changing the effective date included in the BBA, this initiative includes strong maintenance of effort language as well as incentives for our state to find those 90,000 uninsured kids because we feel strongly that they receive the health coverage for which they are eligible. This bill does not take money from other states nor does it provide additional federal subsidies for children the state is now covering, it simply allows Washington to continue to do the good work they have already started by focusing on new, uninsured children at low income levels first.

Mr. GORTON. Mr. President, in recent years, I have become increasingly frustrated with the inability of the Forest Service to complete work on several small hydroelectric projects located on the Mount Baker/Snoqualmie National Forest in my State. The Service's inability to make important decisions on these renewable energy resources is based on an inaccurate interpretation of the President's Northwest Forest Plan (``ROD'') which has stopped these projects from going forward. The President's Northwest Forest Plan states clearly that multipurpose uses of the federal forests are not precluded, and that the plan must follow existing law applying to such uses. Yet, since its adoption in 1994, the Forest Service has and continues to paralyze the development of small hydroelectric projects by ignoring laws applying to multipurpose. This inaction has delayed and stifled review of such projects by the Federal Energy Regulatory Commission--the agency responsible for issuing federal licenses for hydroelectric projects. Forest Service interpretation of the ROD intrudes directly on the ability of the Commission to perform its hydroelectric licensing function of balancing development and nondevelopment issues. Both the Commission, when determining consistency with the purpose of a national forest under Section 4(e) of the Act, and the Forest Service, when determining whether to issue a special use permit, must apply existing law fairly. Forest Service inaction on pending projects (some of which have been under review for over a decade) prevents FERC from completing its licensing responsibilities. In terms of federal forest management, the six small hydroelectric projects proposed for the Mount Baker/Snoqualmie National Forest are virtually inconsequential. All are located well above areas affecting anadromous fish, and would occupy a total of 10 to 40 acres each, with most of the sites being untouched except for the portions needed for project facilities. Adverse impacts to fish, wildlife or other environmental resources are subject to mitigation by FERC and the Forest Service. Project proponents in my state have spent millions of dollars to secure approval of six projects located in the Mount Baker/Snoqualmie National Forest, including project design and environmental analysis necessary to gain approval from the Forest Service and FERC. In spite of the fact that the 1994 ROD instructs the Forest Service to use ``transition'' provisions to approve pending projects, it has not done so, and continues to add project review requirements not allowed by the ROD or existing law. As a result, the Forest Service is stopping FERC from making timely licensing decisions on these projects. Shifting standards of review an delay by the Forest Service have deprived project proponents of their right to rely upon clear standards for project approval before expending funds in reliance on such standards. Many aspects of these projects were found to be in compliance with prior forest regulations and other environmental laws, and are being subjected to duplicative and inconsistent review. Provisions of the ROD developed for application to extremely large-scale timber harvest are not meant to impact small-scale hydroelectric projects. Timber management regulations are totally disproportionate with the scale of any potential environmental impacts of small-scale hydroelectric facilities. In fact, the ROD itself explicitly recognizes that uses other than timber harvest do not require the same level of restrictions. The Forest Service continues to use the ROD as a reason for imposing new study requirements, increasing mitigation demands, and ignoring agreements on project compliance with forest plan standards and FERC requirements. Each new requirement adds onerous financial burdens on project proponents, delays project approval, and undermines the regulatory need for an end to project review so a final licensing decision can be made by FERC. Actions by the Forest Service have placed that agency in direct conflict with FERC, a result not intended by the ROD. FERC's jurisdiction over hydroelectric project licensing is unaltered by the ROD, which itself calls for increased interagency cooperation, not confrontation. Mr. President, I have tried in recent years through my position as Chairman of the Senate Interior Appropriations Subcommittee responsible for funding the Forest Service's annual budget to get some answers from this agency as to why it was holding up these hydroelectric projects. In 1995, I inserted language directing the Forest Service to ``conduct an expeditious review'' of projects covered by the ROD. In subsequent hearings, I have continued to ask agency witnesses for a status report. To date, none of the responses from the Forest Service have satisfied my concerns or adequately addressed this issue. For this reason, I am introducing legislation today that would expedite the hydroelectric project review process. It will require the Forest Service to convey to permit holders and license applicants for these projects at fair market value the parcels of land necessary for development of these projects. While I would prefer and am still hopeful that this issue can be resolved in negotiations between the project proponents and the agency, clearly this process is broken and needs to be fixed. This legislation should serve as a catalyst for resolving outstanding hydroelectric project review issues. Project proponents deserve at least that much.

Mr. GORTON

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