T. Gorton

Mr. GORTON

Mr. GORTON. Mr. President, every day almost 1,000 Americans suffer from Sudden Cardiac Arrest. It can claim the life of a promising young athlete, a friend or family member regardless of age or health. Sudden Cardiac Arrest occurs when the heart's electrical impulses become chaotic causing the heart to stop pumping blood. Tragically, 95 percent of Americans who suffer from sudden cardiac arrest will die. Today, I am introducing a bill that can change that statistic. We know that quick implementation of ``Chain of Survival''--calling 911, administering CPR and early access to defibrillation can dramatically improve survival rates for victims of Sudden Cardiac Arrest. Unfortunately, early access to defibrillation may be the most critical link in the chain and the most difficult to come by. The Cardiac Arrest Survival Act aims to improve community access to automatic external defibrillators (AEDs), a machine designed to shock the heart and restore its normal rhythm. If every community across America made this easy-to-use technology more readily available, we could increase the survival rate of cardiac arrest and possibly save 250 lives each day and 100,000 lives each year. My home state of Washington has a long history of encouraging the use of AEDs. King County, Washington boasts one of the highest cardiac arrest survival rates in the nation at 30 percent--far above the national average survival rate of 5 percent. Communities that have improved survival rates have ensured that Emergency Medical Technicians are trained and equipped with automatic external defibrillators. Some communities have located AEDs in public places like sports stadiums, airports and shopping malls, and others have worked to ensure that police and firefighters, often the first to respond to an emergency, are trained and equipped with AEDs. Although the technology is proven effective, access to defibrillators outside the hospital setting is limited. Patient care and survival suffer from a patchwork of different state laws. Less than half of the nation's Emergency Medical Technicians are even trained and equipped to use AEDs. The Cardiac Arrest Survival Act aims to reduce the number of cardiac arrest fatalities by encouraging a uniform system of state laws and to improve current emergency medical training programs. The bill asks the National Heart, Lung, and Blood Institute to work on model state legislation that addresses some of the barriers to community access to AEDs such as good samaritan immunity and public placement of these machines. NHLBI will also work with the National Highway Transportation and Safety Administration to update the current medical training curriculum to reflect the improvement in technology. The bill will also coordinate a database to collect information on cardiac arrest from existing databases on emergency care. While the bill is far from mandating anything, I am convinced we can reduce the number of cardiac arrest fatalities by encouraging states to train more people to use AEDs right on the scene in a way that the state of Washington is already doing. The Cardiac Arrest Survival Act is the Senate companion to a bill introduced by Congressman Stearns in the House of Representatives that currently has 80 cosponsors. The bill enjoys broad support from more than seventy associations including the American Heart Association, the American Red Cross, the American Academy of Pediatrics, the Congressional Fire Services Institute Advisory Committee with some 45 members, the Washington State Medical Association, the Washington State Hospital Association and a number of other supporters. I am also pleased to be joined by my colleagues Senators Murray, Grams, and Bingaman as original cosponsors of the bill, the full text of which I ask be printed in the Record.

Mr. GORTON

Mr. GORTON. Mr. President, for the information of all Members, they should understand that this amendment on the part of the Democratic leader does not take us back to where we were yesterday. This is a bill that might best be called Commerce 2. It does not include any of the drug provisions; it does not include a repeal of the marriage penalty; it does not even include the Gregg amendments or the Durbin amendments. It does not include the amendment that was one of mine that was passed to limit attorneys' fees. In effect, this doesn't take us back to yesterday afternoon, it takes us back to 4 weeks ago. I hope that Members will overwhelmingly deny this.

Mr. GORTON. Mr. President, I ask for the yeas and nays.

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

Mr. GORTON. Mr. President, I ask unanimous consent that the amendment be set aside so that other Members may, if they wish, offer first- degree amendments.

Mr. GORTON. Mr. President, as the Democratic leader said, what he has proposed now is that instead of dealing with the normal appropriations bills before the Senate, we should go back to a debate which has taken the last 4 weeks of the Senate's time and ignore everything else that is appropriate in the Senate business. Last evening, in the last vote, his position fell eight votes shy of getting a necessary budget waiver because of its immense cost to the people of the United States. This proposal, obviously, is equally subject to such a point of order, one that I expect that the majority leader is likely to interpose soon. The result will be identical. In other words, it is simply a frustrating waste of the Senate's time when the Senate ought to be engaged in the business that is before us, and that is the energy and water appropriations bill. I share one sentiment with the Democratic leader. I believe that the Senate should pass a bill relating to tobacco. I don't believe that it should be anything like the bill that was before us yesterday, by any stretch of the imagination. But if we are to pass legislation on the subject, it is going to require more understanding and more tolerance of one side to the other than evidenced in the course of the last 3 or 4 weeks. It clearly is not going to be accomplished by the kind of amendment that was placed before the Senate at this point. Awaiting further instructions from the majority leader, I suggest the absence of a quorum.

Mr. GORTON. Mr. President, I ask unanimous consent that reading of the amendment be dispensed with.

Mr. GORTON. Mr. President, on behalf of Senator Domenici, for Senator Inouye, I send an amendment to the desk.

Mr. GORTON. Mr. President, our desires not yet having been met, I suggest the absence of a quorum.

Mr. GORTON

Mr. GORTON. Mr. President, this morning the Senate will immediately resume consideration of the energy and water appropriations bill. Senator Reid and I hope that Members who wish to offer amendments to the energy and water bill will come to the floor during today's session to offer and debate their amendments under short time agreements. Therefore, rollcall votes are possible during today's session of the Senate. The majority leader would like to remind Members that the Independence Day recess is fast approaching, and therefore the cooperation of all Members will be necessary to make progress on a number of important items, including appropriations bills, any available conference reports, the Higher Education Act, the Department of Defense authorization bill, and any other legislative or executive items that may be cleared for action. I thank my colleagues for their attention.

Mr. GORTON

Mr. GORTON. I thank the Chairman for the clarification and for the hard work on this bill. devils lake, north dakota

Mr. GORTON. Mr. President, I rise for a brief colloquy with the manager of the bill. I would like to thank the chairman for his generous work to fund the Rodeo Lake project near Othello, Washington. This project will help alleviate a serious flooding problem in Central Washington state. There has been some confusion, however, regarding the Corps of Engineers' involvement in the project. I understand that, because of the water at Rodeo Lake directly affects projects maintained by the Bureau of Reclamation, the committee intends for the Corps to coordinate its efforts with the Bureau of Reclamation. Is my description of the committee's intentions correct?

Mr. GORTON

Mr. GORTON. Mr. President today I join with Senators Kerrey, Jeffords, and Bumpers, to introduce the Private Use Competition Reform Act of 1998. This legislation provides a fair balance among public financing concerns, principles of fair competition and customer choice in the electric utility industry. At the same time, it strikes an equitable balance between publicly-owned utilities and investor-owned utilities. Most importantly, it advances the interest of consumers. The challenge in developing this legislation was to determine the middle ground. Some publicly-owned utilities would like to change the Tax Reform Act of 1986 so that all existing and all future tax-exempt debt would be protected without restrictions. Some investor-owned utilities favor elimination of tax-exempt options for municipal electric utilities, including much of their existing debt. However, this approach would threaten the existence of publicly owned utilities, and raise rates for more than 40 million consumers. This bill will accomplish two objectives. First, it clarifies how the existing private-use requirements--the rules that limit the ability of publicly-owned utilities to sell or transport electricity to private parties from facilities financed by tax-exempt bonds--will work in a new competitive marketplace. Secondly, it provides options, with significant tradeoffs, for those utilities that need flexibility and encourages municipalities to open their transmission systems and provide retail choice to consumers. There are three categories of debt addressed in this legislation. The first consists of existing debt that has been issued for all segments of a public utility's system: generating plants, transmission lines, and local distribution systems. This debt was issued under the assumption that our existing system would not change, and electric utilities would remain closed and not be subject to retail competition. The second category of debt pertains to bonds issued after the effective date of the enacted bill and used to finance new generating facilities. There is a compelling argument that this type of debt should not be tax-exempt because power generation, unlike transmission and distribution, is emerging as a competitive market. The third category of future debt involves those areas of a utility's system that will not face competition: transmission and local distribution. Since these areas would remain de facto monopolies regulated by FERC or local governments and would be increasingly open to access by all market participants on a non-discriminatory basis, it is appropriate that they should continue to have access to tax-exempt financing. This bill addresses each area differently. To enable public power systems to one up their transmission and distribution systems, it provides limited relief to existing tax-exempt debt. But there is a significant tradeoff for this relief: eliminating publicly-owned utilities' ability to issue tax-exempt debt for facilities that will be used in a competitive marketplace. The Current Problem The Energy Policy Act of 1992 and the subsequent FERC Order 888 mandating open transmission access, coupled with state restructuring efforts, have created a significant tax problem for public systems. To gain access to competitive wholesale markets, a publicly-owned utility must provide comparable access; some public power systems own vital transmission links within a geographical area. Also, customers of public systems--who are also their owners--will want access to other power suppliers. If publicly-owned systems open their transmission lines they can run afoul of the current ``private-use test'' in the tax code and force their bonds to become retroactively taxable. In sum, the current private use restrictions were written before anyone could anticipate a competitive electricity industry; consequently this places publicly-owned utilities in a complex bind. Allowing private entities to use their transmission facilities could trigger the private use tests, resulting in an expensive and chaotic defeasance of these bonds. Public systems also face penalties under private use regulations if they sell power to existing customers on a non-tariff basis or resell power that becomes excess when retail customers switch suppliers. The Department of Treasury released temporary regulations in January of 1998, (twelve years after the Tax Reform Act of 1986), but these temporary regulations still fail to provide the flexibility needed for public power systems as the electric utility industry transitions to retail competition. This legislation is needed to address these concerns, and to promote fair competition in the electricity industry. This bill will help ensure that all Americans can enjoy the benefits of competition--lower rates, new and innovative products, and better service. Mr. President, I ask unanimous consent that the text of the bill and the explanatory memorandum be printed in the Record.

Mr. GORTON

Mr. GORTON. Mr. President today I join with Senators Kerrey, Jeffords, and Bumpers, to introduce the Private Use Competition Reform Act of 1998. This legislation provides a fair balance among public financing concerns, principles of fair competition and customer choice in the electric utility industry. At the same time, it strikes an equitable balance between publicly-owned utilities and investor-owned utilities. Most importantly, it advances the interest of consumers. The challenge in developing this legislation was to determine the middle ground. Some publicly-owned utilities would like to change the Tax Reform Act of 1986 so that all existing and all future tax-exempt debt would be protected without restrictions. Some investor-owned utilities favor elimination of tax-exempt options for municipal electric utilities, including much of their existing debt. However, this approach would threaten the existence of publicly owned utilities, and raise rates for more than 40 million consumers. This bill will accomplish two objectives. First, it clarifies how the existing private-use requirements--the rules that limit the ability of publicly-owned utilities to sell or transport electricity to private parties from facilities financed by tax-exempt bonds--will work in a new competitive marketplace. Secondly, it provides options, with significant tradeoffs, for those utilities that need flexibility and encourages municipalities to open their transmission systems and provide retail choice to consumers. There are three categories of debt addressed in this legislation. The first consists of existing debt that has been issued for all segments of a public utility's system: generating plants, transmission lines, and local distribution systems. This debt was issued under the assumption that our existing system would not change, and electric utilities would remain closed and not be subject to retail competition. The second category of debt pertains to bonds issued after the effective date of the enacted bill and used to finance new generating facilities. There is a compelling argument that this type of debt should not be tax-exempt because power generation, unlike transmission and distribution, is emerging as a competitive market. The third category of future debt involves those areas of a utility's system that will not face competition: transmission and local distribution. Since these areas would remain de facto monopolies regulated by FERC or local governments and would be increasingly open to access by all market participants on a non-discriminatory basis, it is appropriate that they should continue to have access to tax-exempt financing. This bill addresses each area differently. To enable public power systems to one up their transmission and distribution systems, it provides limited relief to existing tax-exempt debt. But there is a significant tradeoff for this relief: eliminating publicly-owned utilities' ability to issue tax-exempt debt for facilities that will be used in a competitive marketplace. The Current Problem The Energy Policy Act of 1992 and the subsequent FERC Order 888 mandating open transmission access, coupled with state restructuring efforts, have created a significant tax problem for public systems. To gain access to competitive wholesale markets, a publicly-owned utility must provide comparable access; some public power systems own vital transmission links within a geographical area. Also, customers of public systems--who are also their owners--will want access to other power suppliers. If publicly-owned systems open their transmission lines they can run afoul of the current ``private-use test'' in the tax code and force their bonds to become retroactively taxable. In sum, the current private use restrictions were written before anyone could anticipate a competitive electricity industry; consequently this places publicly-owned utilities in a complex bind. Allowing private entities to use their transmission facilities could trigger the private use tests, resulting in an expensive and chaotic defeasance of these bonds. Public systems also face penalties under private use regulations if they sell power to existing customers on a non-tariff basis or resell power that becomes excess when retail customers switch suppliers. The Department of Treasury released temporary regulations in January of 1998, (twelve years after the Tax Reform Act of 1986), but these temporary regulations still fail to provide the flexibility needed for public power systems as the electric utility industry transitions to retail competition. This legislation is needed to address these concerns, and to promote fair competition in the electricity industry. This bill will help ensure that all Americans can enjoy the benefits of competition--lower rates, new and innovative products, and better service. Mr. President, I ask unanimous consent that the text of the bill and the explanatory memorandum be printed in the Record.

Mr. GORTON

Mr. GORTON. Mr. President, a year ago on Saturday, the attorneys general of most of the States of the United States reached an agreement with the tobacco companies. Those attorneys general understood that in order to have real control over tobacco sales and advertising such an agreement needed to be reached. Members of this body have never understood the fundamental fact that without that agreement, the basic restrictions on advertising, on look-backs, and on the like are blatantly unconstitutional. As a result, we have a bill before us that is unconstitutional, steals the money that the States' attorneys general earned for themselves, and provides no incentives for tobacco companies to operate responsibly. If we reject it, either we will get out of the hot rhetoric of this body with a small group who came up with a responsible bill, or the States will go ahead themselves. People will be protected. They were protected by the States, in the first place. They will be protected by the States if we fail to act responsibly. This bill is not remotely responsible.

Mr. GORTON

Mr. GORTON. Mr. President, I ask unanimous consent that the full Committee on Armed Services be authorized to meet on Tuesday, June 16, 1998, at 10 a.m. in open session, to consider the nominations of Mr. Louis E. Caldera, to be Secretary of the Army and Mr. Daryl Jones, to be secretary of the Air Force.

Mr. GORTON. Mr. President, I ask unanimous consent that the Senate Committee on Commerce, Science, and Transportation be authorized to meet on Tuesday, June 16, 1998, at 2:30 p.m. on music lyrics.

Mr. GORTON. Mr. President, I ask unanimous consent that the Committee on Foreign Relations be authorized to meet during the session of the Senate on Tuesday, June 16, 1998, at 10 a.m., 2:30 p.m., and 4 p.m. to hold three hearings.

Mr. GORTON. Mr. President, I ask unanimous consent that the Subcommittee on Water and Power of the Committee on Energy and Natural Resources be granted permission to meet during the session of the Senate on Tuesday, June 16, for purposes of conducting a subcommittee hearing which is scheduled to begin at 2:30 p.m. The purpose of this hearing is to receive testimony on S. 1398, the Irrigation Project Contract Extension Act of 1997; S. 2041, a bill to amend the Reclamation Wastewater and Groundwater Study and Facilities Act to authorize the Secretary of the Interior to participate in the design, planning, and construction of the Willow Lake Natural Treatment System Project for the reclamation and reuse of water, and for other purposes; S. 2087, the Wellton-Mohawk Title Transfer Act of 1998; S. 2140, a bill to amend the Reclamation Projects Authorization and Adjustment Act of 1992 to authorize the Secretary of the Interior to participate in the design, planning, and construction of the Denver Water Reuse project; S. 2142, the Pine River Project Conveyance Act; H.R. 2165, an Act to extend the deadline under the Federal Power Act applicable to the construction of FERC Project Number 3862 in the State of Iowa, and for other purposes; H.R. 2217, an Act to extend the deadline under the Federal Power Act applicable to the construction of FERC Project Number 9248 in the State of Colorado, and for other purposes; and H.R. 2841, an Act to extend the time required for the construction of a hydroelectric project.

Mr. GORTON. Mr. President, I ask unanimous consent that the Committee on the Judiciary be authorized to meet during the session of the Senate on Tuesday, June 16, 1998, at 10 a.m. in room 216 of the Senate Hart office building to hold a hearing on: ``Mergers and Corporate Consolidation in the New Economy.''

Mr. GORTON

Mr. GORTON. Mr. President, I ask unanimous consent that we postpone the recess for 5 minutes.

Mr. GORTON. Mr. President, in an informal discussion with the Senator from North Dakota, each of us has expressed a hope that we may be able to vote on my amendment shortly after the recess and perhaps after the official photograph of the Senate. I will simply summarize arguments that the Presiding Officer has made so eloquently on each of the amendments on this subject that has been before us and that I made earlier. It does seem to me curious that the two opponents of the amendment made dramatically opposite statements in opposing this amendment. The Senator from North Dakota said in spite of the clear language of the amendment, that instead of a ceiling of so many thousands of dollars an hour, depending on when the litigation began that is the thrust of my amendment, that, in fact, it will be considered a floor. One can take that position only by not reading the amendment and all the considerations that are included in it, but he was afraid that it would mean in many cases we would be paying too much. The Senator from Illinois felt it was terrible to limit lawyers even to $4,000 an hour, because many of them had made agreements under which they would get more. And indeed, as the Presiding Officer said in response to a question from me, we already have one example of one set of attorneys already being awarded well over $2 billion for representing one State, the State of Texas, in litigation of this sort and the attorney general of Texas bitterly opposing the attempt by the Governor of Texas to get a more reasonable set of attorneys' fees. We want to end those debates, and the adoption of this amendment will end those debates, because it will provide a ceiling, I think a highly reasonable ceiling. In fact, I had some of my colleagues tell me privately that they don't like my amendment because it is too much. They can't explain even these amounts. In the abstract, that, of course, is the case, but as against $2.3 billion, as against many of the contingent fee agreements, one can explain these limitations and they are just that; they are ceilings and not anything else. For those who feel that the sky should be the limit, that no matter how many billions of dollars attorneys have contracted for, no matter how much they have pled with us to pass this legislation, no matter how much minute regulation they are asking us to impose on every aspect of the tobacco industry--the farmers, the manufacturers, the wholesalers, the retailers--more regulation than the Congress of the United States has ever imposed on any other legal business in history, that, nonetheless, one aspect of the contracts between States and other plaintiffs and their lawyers should be entirely free of any concern on our part whatsoever. Mr. President, I just can't see how anyone can justify this bill, hundreds of pages of detailed regulations, and say nothing about attorneys' fees other than an arbitration in which the only people represented are the plaintiffs' lawyers and the plaintiffs who have signed the contracts in the first place. No, that is not balance; that is not fair. As the Presiding Officer knows, I disagreed with his previous amendment because it seemed to me that there were certain circumstances under which it was too low. I think we ought to do justice to lawyers who have done an extraordinary job, who have in some cases come up with new theories and have been successful with those theories, but I think we have the right to say enough is enough. This amendment, Mr. President, says enough is enough. And in the future, when tobacco litigation will be very, very easy, a much smaller enough is going to be enough. Probably the long-term result of this amendment would be not dissimilar in the total amount of attorneys' fees paid from the Faircloth amendment that came so close to adoption late last week. This amendment, however, would see to it the lion's share of those recoveries would go to the attorneys who actually earned them and not those who have gotten in very late. I commend this to my colleagues, both Republicans and Democrats, as being reasonable and as being something that should be a part of any overall pattern that we pass, and that is to put us at the heart of the whole debate over tobacco. If we can regulate everyone else, we can regulate the attorneys. We do it fairly in this amendment, and I trust as soon as we come to an agreement on the time it will be voted on, that it will be adopted and we can go on to other important developments in this bill.

Mr. GORTON. I thank my friend from Alabama.

Mr. GORTON

Mr. GORTON. Mr. President, the Senator from North Dakota finds himself on the horns of a delicious dilemma. He feels there may be cases in which the amendment I propose would result in attorneys' fees being awarded that are too great, and so his answer is to reject the amendment and allow attorneys' fees in any amount. Attorneys' fees in one case, in Texas, I believe, have already been approved by the court in an amount more than 10 times higher than the highest amount in this amendment. I am afraid the Senator from North Dakota misreads the amendment. The heart and soul of the amendment is a set of criteria for determining reasonable attorneys' fees, listing a wide range of factors, some of which we have discussed here, but leaving the matter to the discretion of the court. There is a limitation imposed on the discretion of the court by the amendment in the amounts that we have stated and debated. This is a cap and by no means a floor. The Senator from North Dakota says that the better system is the system that is included in this bill, a system of arbitration. But, and the current Presiding Officer has read this very carefully, this is some kind of arbitration. This arbitration is to be decided under the bill by three arbitrators --one appointed by the plaintiff's trial lawyer himself, one appointed by the plaintiff, and a third appointed by the first two. The plaintiff has already signed an agreement--the plaintiff in most of these major cases is the State--they have signed an agreement, in some cases, for a 25-percent contingency fee on billions of dollars' worth of recoveries. Who is going to represent the public interest in this arbitration? No, Mr. President, there isn't anyone there to do that.

Mr. GORTON

Mr. GORTON. Mr. President, reserving the right to object, I will not have any objection. The Senator from Minnesota was most generous with me last night. He did not have an opportunity to finish his remarks. I am happy to have him do so before we start.