T. Gorton

Mr. GORTON

Mr. GORTON. Mr. President, there is at least an informal understanding that there will be a debate on this amendment tomorrow for approximately 1 hour. With the kind indulgence of my friend and colleague from Minnesota, I am going to simply give a brief explanation of this amendment now so Members who are watching, or staffs who are watching, will understand its general subject matter. Twice during the course of this debate we have debated the subject of limitations on attorneys' fees. On both occasions I have voted to table those amendments, not because I felt that limitations on attorneys' fees in connection with tobacco litigation and legislation were not appropriate, but because I felt that the amendments themselves were unfair. This amendment is a third attempt to provide some limitations in a manner that I, at least, believe to be considerably more sensitive and more fair to the attorneys who have been involved in that litigation. I hope under those circumstances it will be given reasonably careful consideration by my colleagues. We are dealing with litigation that is literally unprecedented, I think, in the history of the United States, with the potential of immense recoveries on the part of various States interfered with and amended by the legislation that we are considering here on the floor. Under those circumstances, the possibility that attorneys' fees would be awarded in the billions of dollars--perhaps even in the billions of dollars to some individual firms, but certainly in the order of nine digits to many individuals and individual firms--is a matter that I think greatly disturbs the majority of the American people and many, if not most, members of the bar. Those attorneys' fees have been subject to much criticism from the outside, and there should be a way to see to it that they are dealt with fairly. The difficulty with the two earlier amendments, in my view at least, was that they treated all lawyers, all attorneys who were involved in tobacco litigation--past, present, and future--in exactly the same fashion. Yet it is obvious that, if we look at the history of this controversy, the initial litigation and the ideas for that initial litigation that were brought forth some time ago, in the early 1990s, were developed by a group of tremendously gifted and imaginative attorneys at a time at which the odds on their success, looking at it from the beginning, would have been judged to have been very small. They have shown great skill, great persistence; they have spent, in many cases, a great deal of their own and their law firms' money; and I think the reward they have earned is considerably larger than awards that will be earned by those who got into this litigation very late in the game when it was obvious that the litigation was going to be settled for large amounts of money or litigated successfully; not to mention those who will bring tobacco-related litigation in the future when, under the terms of this bill, and many State legislative acts, it will be almost impossible for an attorney to lose a tobacco case. As a consequence, the fundamental approach of this amendment is to say that for those who were in this litigation early--that is, before the end of the year 1994--attorneys' fees can be up to $4,000 an hour-- a huge amount of money beyond any question, a mind-boggling amount of money, but nevertheless considerably less than many of these attorneys will get in the absence of such legislation, on the basis of percentage contingent fees. Moreover, like other amendments in this connection, that is a ceiling, not a floor. The courts, in this case, will make a determination considering all of the same items that have been outlined in previous decisions of the U.S. Supreme Court and in previous amendments on this subject. So when a judge determines that amount is too much, the judge may reduce the amount below that hourly fee but under no circumstances may go above it. The second category of attorneys will be those who were involved in this litigation after 1994 but before early last year. Their ceiling will be half the amount of the pioneers, or $2,000 an hour. And certain other attorneys who worked on developing the ideas that went into this case will fall into that category as well. The next clear date is when the Liggett Tobacco Company agreed, in effect, to turn state's evidence to settle the matter and to admit its liabilities and admit, generally speaking, the liabilities of the other tobacco companies. Those who got into the litigation after that were almost certain winners--almost certain winners. They did not run the risks that earlier attorneys did, and their maximum fee under this amendment will be $1,000 an hour. That will, in fact, be somewhat less than the maximum recovery under the last Faircloth amendment, because while it stated the sum of $1,000 an hour, it allowed for recovery of costs over--considerably over and above the actual costs incurred in the litigation. Finally, after the beginning of this debate here, assuming that this debate, of course, ends up in actual legislation, tobacco litigation will be almost like Workmen's Compensation litigation in all of our State courts, and the limit there is $500 an hour under this amendment, half that in the last Faircloth proposal. Again, these are limits, these are maximums, but they are maximums set in a different way than they were in the other two amendments, reflecting the actual risks, the actual imagination, the actual work that went into the litigation and, for that matter, into the legislation itself. I am not certain this is a totally perfect proposal of this nature, but I think it is highly reasonable. I think it is highly generous. I think it meets the views of people in the United States as a whole who do not think the lawyers in this case should become billionaires out of it. And it will husband the actual recoveries, whatever those recoveries may be and however they are derived, far more for the purposes of the litigation and the legislation itself than relatively unlimited contingent fees would do. That is a brief explanation and a justification of something that I hope meets with the support of those who have felt that there ought to be limits on those attorneys' fees, but that they should be somewhat lower and those on the other side, who, like I, have voted against these previous limitations on the grounds that they weren't sensitive enough and for at least some people were not high enough. I would like to bring people together on this so that at least this particular element of this debate can be brought to a successful conclusion.

Mr. GORTON

Mr. GORTON. How much time is available to the opponents?

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

Mr. GORTON. Unfortunately, I must object on behalf of the majority leader. He wishes the vote take place then. Then I will yield the floor.

Mr. GORTON

Mr. GORTON. This is the last day that the Spring page class will be with us. And I am going to take a moment to recognize and thank this fine group of young people for their invaluable assistance in the Senate. Their hard work keeps the Senate running smoothly on a day-to- day basis. All of our pages are accomplished students and involved in their schools and communities. However, I would like to specifically commend the page from my home State of Washington, Sina Nazemi, for his outstanding efforts. Even among this class of exceptional young people Sina has set himself apart. Over the last 6 months I have had the opportunity to get to know Sina and while I recognized that he was a fine student and a personable young man, I have also learned that Sina is rather secretive. After six months of working in the Senate, today I learned that his peers chose Sina to serve as President of the page class. Today, the faculty and principal at the page school also recognized Sina with the Leadership Award and the Good Citizen Award. What initially prompted my recognition of Sina was his winning essay in the 1998 Law Day Essay Competition sponsored by the District of Columbia Courts and The Bar Association of the District of Columbia, which I only learned of last week. Sina's essay is a well written piece on the importance of the first amendment that draws heavily on his first hand experience as an immigrant from Iran. He writes that the first amendment creates ``a battlefield of ideas which allows the best ideas to emerge''. I hope he was at least in part inspired by the ``battlefield of ideas'' that is evident each day on the Senate floor. In addition to serving as class president, Sina kept pace with the rigorous academics at the Page School and the work schedule of the Senate. We keep these kids working so hard that Sina didn't even have the whole week of Easter recess off. I held an education forum in the state that week, and Sina served admirably as the moderator and spokesperson for the student group. All of this is done with diligence and enthusiasm. Sina has a great deal to be proud of yet, the modesty he shows reflect maturity beyond his years. These attributes will undoubtedly serve him well in his future. Sina, you have my best wishes and thanks for your service to the Senate. I suggest the absence of a quorum.

Mr. GORTON

Mr. GORTON. Mr. President, I ask unanimous consent to speak for 5 minutes as in morning business.

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

Mr. GORTON

Mr. GORTON. Mr. President, although I am speaking on the same side of this proposition as did the Senator from Massachusetts, I believe it is appropriate for us to deal with this issue. Parties whose fee agreements we are interfering with have come to the Congress of the United States to ratify settlements that have already been made. If we can vote here on how much money States will receive and how they have to spend that money, if we can change the law to shift the burdens in tobacco litigation, we can address the issue of attorney's fees. I also agree with the amendment's sponsors that we can and should set the attorneys' maximum compensation. I do not agree, however, that the amount proposed in this amendment is reasonable. It is too much for lawyers who bring lawsuits in the future, when, under this bill, it will be much easier to prevail against tobacco manufacturers. At the same time, the amount is considerably too little for those highly skilled attorneys who took on the tobacco companies on novel theories years ago, when their chances of winning were extremely remote. If we are going to set maximum attorneys' fees, we ought to set them on a reasonable basis, a basis that fully accounts for the relative amounts of risk, skill, and investment on the lawyers' part. Unfortunately, this amendment does not do this. It does not make distinctions that I believe are fair and proper. For this reason, the amendment is not a good one, and I believe that it should be tabled.

Mr. GORTON

Mr. GORTON. Mr. President, I ask unanimous consent for 10 minutes in morning business.

Mr. GORTON

Mr. GORTON. Last week, Mr. President, Secretary of State Madeleine Albright traveled to Geneva to meet with the other permanent members of the U.N. Security Council. The purpose of her meeting was to convince the world's declared nuclear powers to join the United States in condemning India and Pakistan for their recent nuclear tests and somehow to prevent an arms race from escalating in South Asia. To no one's surprise but her own and President Clinton's, no agreement was reached. The foreign policy of the United States in the Clinton Administration has now come down to this. In dealing with the People's Republic of China, a country with a developing internal free market, but repressive of any political dissent, with systematic restrictions against competitive American products, and a blind eye toward billions of dollars of intellectual property piracy, we not only don't defend the victims of these practices, we generously supply the PRC with missile technology that allows it to increase in its already immense threat to its neighbors. The Clinton Administration gives ``Most Favored Nation'' treatment for China a whole new meaning. What it means now is, what China wants, China gets--even an American president to be greeted on Tiananmen Square, insulting the memory of its martyrs. And then we are surprised when India tests nuclear weapons, joining a club we founded fifty years ago. We react by sanctioning-- unilaterally--the world's most populous democracy. And we follow up by imposing the same sanctions on Pakistan, a long time ally, for a natural and justified reaction to India's tests. As Charles Krauthammer so eloquently put it in his column in Friday's Washington Post, the President: . . . is guilty of more than mere fatuousness, however, in dealing with the India-Pakistan nuclear arms race,. He is guilty of fueling it. While for years his administration has claimed deep concern about proliferation, [he] has shamelessly courted the world's worst proliferator of weapons of mass destruction: China. Not only is the administration in large part to blame for the current crisis, but is now taking steps to ensure that our economy will suffer together with our national security. The President has decided to impose harsh economic sanctions on both India and Pakistan. It has already been made alarmingly clear that unilateral sanctions do not work. For the law the President stands behind in his decision to impose sanctions was designed not to punish other nations for flexing their nuclear muscle, but to deter them from entering the nuclear club. As David E. Sanger wrote in The New York Times on May 24, ``passionate national causes--particularly the urge for self-sufficiency--almost always trump economic rationality.'' Mr. Sanger goes on to say, wisely, that ``unilateral sanctions almost never work--precisely because they are unilateral. In a global economy, there are too many producers of almost everything.'' The President has told the American people that he has no choice but to impose the sanctions, claiming that they are required under the Nuclear Proliferation Prevention Act of 1994. What he doesn't say is that Sections 102 (b)(4) and (5) of that law provide the President authority to waive the sanctions in whole or in part if he uses the 30 day delay allowed him before imposing the sanctions. The President did not use the 30 day delay. The reason for his rush to impose sanctions is clear. The President has no other solution. But unilateral sanctions do little to produce results. Instead, they harm U.S. workers, farmers, and families. My home state of Washington has a lot at stake in this international dispute. In 1996, Washington exports to India totaled $429.39 million and India was the state's fourteenth largest export market. Boeing airplane sales to India totaled $372.8 million in 1996 and accounted for a large majority of overall Washington state exports to that country. Most of the planes India purchases from Boeing are financed by the Export-Import Bank. If the President cuts off Ex-Im Bank loans to India, Boeing, and Washington state's economy will feel a major strain. Washington is the largest producer of soft white wheat, Pakistan's grain of choice. Pakistan is the largest market for Washington state wheat exports. During Fiscal Year 1997, Pakistan purchased 2 million metric tons of soft white wheat from the Pacific Northwest--32 percent of total soft white wheat exports from the region. So far in FY 1998, Pakistan has purchased 2.14 million metric tons of soft white wheat--37 percent of total wheat exports from the region, with purchases from Washington totaling $140 million. While American farmers and manufacturers stand today at risk of losing these important markets, their counterparts in Canada, Europe, and Australia are celebrating the shortsightedness of the U.S. Administration. For the U.S. sanctions are better for their businesses than the most ingenious of marketing campaigns. They are happy to step in and fill the place of American exporters in India and Pakistan. Mr. President, if the U.S. is the only country imposing sanctions on India and Pakistan for actions strongly supported by a large majority of their people, then the Indian and Pakistani governments and the Indian and Pakistani people will turn to nations that are not criticizing their actions for their imports. Airbus and Canadian or Australian grain farmers will benefit from U.S. actions, while Boeing and U.S. farmers will be left out in the cold. The President must take action now to resolve the situation in South Asia and end the sanctions. If he does not, the American people will suffer the consequences of his mistakes for a long time. Mr. President, I suggest the absence of a quorum.

Mr. GORTON

Mr. GORTON. Mr. President, in 1984, I spoke in this Chamber to champion passage of a bill that would dramatically expand the Alpine Lakes Wilderness Area. The bill became law, and the wilderness area now boasts more than 390,000 acres of alpine and subalpine forests, 450 miles of trails, more than 500 lakes and countless peaks and pinnacles. It offers year-round opportunities for hikers, campers, skiers, fishermen, or those who simply want time away from urban life. It is arguably one of Washington's favorite recreational sites. Today, I introduce legislation that would dramatically enhance the value of this recreational and environmental jewel--a bill to complete the I-90 Land Exchange between the Forest Service and Plum Creek Timber Company. The land exchange would bring up to 60,000 acres of forest land adjacent to the wilderness area into public ownership, creating a stretch of publicly owned forest from the southern border of the wilderness area to I-90. Plum Creek would trade up to 60,000 acres of its land on the I-90 corridor of the Central Cascades for up to 40,000 acres of Forest Service land in three different forests. The benefits of the exchange are immense. It will place into public hands some of the last large blocks of privately owned old growth forest and increase publicly owned spotted owl habitat by 22,000 acres. It will bring into public ownership 14 miles of Pacific Crest Trail. It would eliminate much of the complicated checkerboard land ownership pattern, under which public and private entities each owns every other square mile of land. And it will fulfill a long-sought priority of Washington's environmental community--the public acquisition of prized sites such as Silver Creek, Scatter Creek, and Thorp Mountain. There is a long history of controversy surrounding these lands. Although the land exchange has been under consideration in one form or another for more than a decade, this is the closest it has ever come to completion. Conservationists began pushing for a resolution to the checkerboard ownership pattern back in the late 1970's. In 1986, the Forest Service and Plum Creek considered an exchange in the Silver Creek basin, the heart of the land exchange package under consideration today. In 1988, with the support of local environmental groups and Plum Creek, a legislative proposal to complete the exchange was brought to Congress. When the bill was not considered, the Forest Service and Plum Creek launched an attempt to complete the exchange administratively. However, the listing of the spotted owl put the project on hold. Since that time, some parcels have been acquired using the Land and Water Conservation Fund, but with such limited federal resources and such a vast amount of land, an exchange has proven to be the only way to bring a final resolution to the Central Cascades' checkerboard. In fact, the Conference Report that accompanied the 1996 fiscal year appropriation for the Forest Service stated: The managers continue to encourage strongly the use of land exchanges as a way in which to protect important recreational or environmentally significant lands, in lieu of the Federal Government acquiring lands. The managers believe that land exchanges represent a more cost-effective way in which to do business and encourage the Forest Service to give high priority to those exchanges either nearing completion, or where land management decisions are made particularly difficult due to checkerboard ownership. In August of 1995, Plum Creek and the Forest Service went back to the drawing board, and agreed to initiate the I-90 exchange. By mid-June of 1996, when Plum Creek signed a 420,000 acre Habitat Conservation Plan, Plum Creek and Secretary Glickman entered into a two year agreement to finish the exchange. Plum Creek agreed to withhold harvest on most of the exchangeable lands worth approximately $200 million during the two- year period, and although that deadline has now passed, Plum Creek agreed to extend it through the end of this year. But we're still running out of time. If we fail, we will lose this opportunity to maximize the public benefits of this exchange. Neither Plum Creek nor the Forest Service has the financial resources to continue endlessly this process. No one can reasonably expect Plum Creek to have the patience to continue on with this arduous and difficult process indefinitely. If the I-90 Land Exchange is not completed by year's end, the exchange will begin to fall apart under the weight of an endless appeals process and litigation battles that could go well into the next century. And it's not reasonable to expect Plum Creek to sustain operations on the exchangeable lands through the indefinite and uncertain appeals process. To put it bluntly, if the exchange is appealed, this current opportunity will be lost forever and we won't have another chance to acquire such a large block of some of Washington's premier forest land. That's why I am introducing this bill. We need to keep all options open for finishing the land exchange on time. I understand that both Plum Creek and the Forest Service are still committed to the administrative process, and that's important. With the introduction of this bill and companion legislation in the House by Congressman Doc Hastings, we now have two options for finishing this land exchange on time and getting the most value out of the trade. Ultimately, public support or public opposition will determine the outcome of the exchange, regardless of how it is completed. Passing a bill though Congress and earning the President's signature demands public support. The building blocks are in place. In March, Washington State Governor Gary Locke wrote to President Clinton urging completion of the exchange by the end of the year. The State Legislature unanimously passed a resolution in support of the exchange. Recreational enthusiasts see the long-term value of bringing these lands into public ownership. Environmentalists recognize the value of blocking up these lands to create a habitat corridor for wildlife and to protect some of the last large blocks of privately owned old growth forest. And major newspapers have endorsed it. Earlier this spring, the Seattle P-I described the dire consequences if this land swap was not completed this year. The PI-'s editorial stated: ``None of the land exchanges is apt to satisfy everyone involved. But if the lands are not consolidated, however imperfectly, it will be next to impossible to preserve them effectively for salmon or wildlife habitat. And that's a real lose-lose.'' Under the administrative process, however, it only takes one voice of opposition to file an appeal and kill the proposal for good. The lands package outlined in this bill is not final as discussions and negotiations continue back in Washington state. I appreciate that all parties are at the table working towards a lands package that everyone can support, and I know from experience that these discussions take time and patience. Mr. President, let me emphasize once more that the legislation I am introducing today is only a placeholder. It represents a starting point--albeit an excellent one--to achieve a consensus-based end product. I encourage the parties now at the table to continue their efforts and to expedite the completion of this large and vital exchange. Mr. President, I ask unanimous consent that the editorial be printed in the Record.

Mr. GORTON

Mr. GORTON. Mr. President, in 1984, I spoke in this Chamber to champion passage of a bill that would dramatically expand the Alpine Lakes Wilderness Area. The bill became law, and the wilderness area now boasts more than 390,000 acres of alpine and subalpine forests, 450 miles of trails, more than 500 lakes and countless peaks and pinnacles. It offers year-round opportunities for hikers, campers, skiers, fishermen, or those who simply want time away from urban life. It is arguably one of Washington's favorite recreational sites. Today, I introduce legislation that would dramatically enhance the value of this recreational and environmental jewel--a bill to complete the I-90 Land Exchange between the Forest Service and Plum Creek Timber Company. The land exchange would bring up to 60,000 acres of forest land adjacent to the wilderness area into public ownership, creating a stretch of publicly owned forest from the southern border of the wilderness area to I-90. Plum Creek would trade up to 60,000 acres of its land on the I-90 corridor of the Central Cascades for up to 40,000 acres of Forest Service land in three different forests. The benefits of the exchange are immense. It will place into public hands some of the last large blocks of privately owned old growth forest and increase publicly owned spotted owl habitat by 22,000 acres. It will bring into public ownership 14 miles of Pacific Crest Trail. It would eliminate much of the complicated checkerboard land ownership pattern, under which public and private entities each owns every other square mile of land. And it will fulfill a long-sought priority of Washington's environmental community--the public acquisition of prized sites such as Silver Creek, Scatter Creek, and Thorp Mountain. There is a long history of controversy surrounding these lands. Although the land exchange has been under consideration in one form or another for more than a decade, this is the closest it has ever come to completion. Conservationists began pushing for a resolution to the checkerboard ownership pattern back in the late 1970's. In 1986, the Forest Service and Plum Creek considered an exchange in the Silver Creek basin, the heart of the land exchange package under consideration today. In 1988, with the support of local environmental groups and Plum Creek, a legislative proposal to complete the exchange was brought to Congress. When the bill was not considered, the Forest Service and Plum Creek launched an attempt to complete the exchange administratively. However, the listing of the spotted owl put the project on hold. Since that time, some parcels have been acquired using the Land and Water Conservation Fund, but with such limited federal resources and such a vast amount of land, an exchange has proven to be the only way to bring a final resolution to the Central Cascades' checkerboard. In fact, the Conference Report that accompanied the 1996 fiscal year appropriation for the Forest Service stated: The managers continue to encourage strongly the use of land exchanges as a way in which to protect important recreational or environmentally significant lands, in lieu of the Federal Government acquiring lands. The managers believe that land exchanges represent a more cost-effective way in which to do business and encourage the Forest Service to give high priority to those exchanges either nearing completion, or where land management decisions are made particularly difficult due to checkerboard ownership. In August of 1995, Plum Creek and the Forest Service went back to the drawing board, and agreed to initiate the I-90 exchange. By mid-June of 1996, when Plum Creek signed a 420,000 acre Habitat Conservation Plan, Plum Creek and Secretary Glickman entered into a two year agreement to finish the exchange. Plum Creek agreed to withhold harvest on most of the exchangeable lands worth approximately $200 million during the two- year period, and although that deadline has now passed, Plum Creek agreed to extend it through the end of this year. But we're still running out of time. If we fail, we will lose this opportunity to maximize the public benefits of this exchange. Neither Plum Creek nor the Forest Service has the financial resources to continue endlessly this process. No one can reasonably expect Plum Creek to have the patience to continue on with this arduous and difficult process indefinitely. If the I-90 Land Exchange is not completed by year's end, the exchange will begin to fall apart under the weight of an endless appeals process and litigation battles that could go well into the next century. And it's not reasonable to expect Plum Creek to sustain operations on the exchangeable lands through the indefinite and uncertain appeals process. To put it bluntly, if the exchange is appealed, this current opportunity will be lost forever and we won't have another chance to acquire such a large block of some of Washington's premier forest land. That's why I am introducing this bill. We need to keep all options open for finishing the land exchange on time. I understand that both Plum Creek and the Forest Service are still committed to the administrative process, and that's important. With the introduction of this bill and companion legislation in the House by Congressman Doc Hastings, we now have two options for finishing this land exchange on time and getting the most value out of the trade. Ultimately, public support or public opposition will determine the outcome of the exchange, regardless of how it is completed. Passing a bill though Congress and earning the President's signature demands public support. The building blocks are in place. In March, Washington State Governor Gary Locke wrote to President Clinton urging completion of the exchange by the end of the year. The State Legislature unanimously passed a resolution in support of the exchange. Recreational enthusiasts see the long-term value of bringing these lands into public ownership. Environmentalists recognize the value of blocking up these lands to create a habitat corridor for wildlife and to protect some of the last large blocks of privately owned old growth forest. And major newspapers have endorsed it. Earlier this spring, the Seattle P-I described the dire consequences if this land swap was not completed this year. The PI-'s editorial stated: ``None of the land exchanges is apt to satisfy everyone involved. But if the lands are not consolidated, however imperfectly, it will be next to impossible to preserve them effectively for salmon or wildlife habitat. And that's a real lose-lose.'' Under the administrative process, however, it only takes one voice of opposition to file an appeal and kill the proposal for good. The lands package outlined in this bill is not final as discussions and negotiations continue back in Washington state. I appreciate that all parties are at the table working towards a lands package that everyone can support, and I know from experience that these discussions take time and patience. Mr. President, let me emphasize once more that the legislation I am introducing today is only a placeholder. It represents a starting point--albeit an excellent one--to achieve a consensus-based end product. I encourage the parties now at the table to continue their efforts and to expedite the completion of this large and vital exchange. Mr. President, I ask unanimous consent that the editorial be printed in the Record.

Mr. GORTON

Mr. GORTON. Mr. President, I speak today in recognition of the 100th Anniversary of the Mutual of Enumclaw Insurance Company. On June 12, 1998, Mutual of Enumclaw will celebrate its 100th Anniversary and a century of successful service in the insurance industry. The company originated in 1898 as the Farmers Mutual Insurance Company at a time when the town of Enumclaw, Washington found its economic base primarily in the railroad, dairy, and lumber industries. The company was established to ``insure farm and village buildings and personal property against loss by fire and lightening.'' This goal remained the focus of the company until 1945, when it expanded to insure non-farm property. Five years later it expanded its area of service to include Oregon and Idaho. In 1963, the company began writing commercial property and casualty insurance and three years later officially changed its name to Mutual of Enumclaw Insurance Company. The company sustained admirable growth throughout the following decades, as reflected by the A+ rating it has consistently received from the A.M. Best Company, a publisher of insurance information and company ratings. Mutual of Enumclaw employs approximately 500 people and helps to provide a sound economic base for the Enumclaw community. As Mutual of Enumclaw Insurance Company celebrates its first hundred years, it looks to the future and to the challenge of continuing to learn and grow in order to meet the evolving needs of its customers.

Mr. GORTON

Mr. GORTON. Mr. President, we are now asked to vote on a bill authorizing the expenditure of more than $200 billion. No member of the Senate other than a handful of conferees has seen a copy of the bill; no one knows anything about its major policy implication. The Senate bill allowed each state's money to be spent as each state determined. This bill included hundreds of Congressionally designated projects in both the highway and mass transit accounts. Although the earmarked Washington state projects were all appropriate in the highway category, the mass transit title did not treat my state fairly. The Regional Transit Authority, perhaps the most cost-effective project in the nation, was less fairly treated than projects abandoned by the communities for which they are authorized. Even more importantly, the general highway fund distribution formula discriminates unfairly against Washington state. It returns to us a lower percentage of our motor vehicle fuel taxes than does present law, the original Senate bill, or the House bill. Our conferees in the Senate did not represent us well. The bill is full of pork and unfair. I will vote against it.

Mr. GORTON

Mr. GORTON. Mr. President, perhaps a brief review of history as to how and why we find ourselves in the position we are in in this debate is an appropriate point at which to begin. Over the years, the Congress has delicately paced around the outer edges of the controversy over tobacco, encouraging certain voluntary limitations on advertising, particularly by television, requiring certain warnings to be included on packages of cigarettes and on advertising, but never getting to the heart of the issue of the desirability or the lack of a desirability of tobacco. Those limitations can be looked at as either a glass partly full or one largely empty. It is clear the major tobacco companies have attempted to remain profitable by creating, through advertising and peer pressure and in any other method that they could, a constantly increasing supply of new smokers, almost all of whom have begun smoking with the conscious knowledge of its adverse impact on their life expectancy and on their health, although when they began young this was not something that was at the forefront of the thoughts of youth. Nevertheless, in the United States of America, over the course of the last 20 or 30 years, we have seen a dramatic reduction in the number of men and women who smoke. We, as Americans, probably smoke less than almost any other country in the world. Various individuals and groups have sued tobacco companies as a result of the adverse impacts of smoking on health. Almost without exception, those individuals have lost those in connection with that litigation. All of this had us in a situation that was almost stable until a group of State attorneys general and private lawyers came along with a new theory, that damage was caused not just to individual smokers but to the treasuries of our States and, by extension, to our own Treasury, through Medicaid primarily, through Medicare, and through the expenses of taking care of tobacco-related health problems, that these damages totaled in the billions of dollars. And, as a consequence, most of the States of the United States brought actions against tobacco companies to recover those losses to their States. Some, as you know, Mr. President, acting independently, have already won that litigation by settlement or otherwise. The bulk of them, almost a year ago, reached an agreement with the tobacco companies for what is almost certainly the most massive judgment or change in practices that has ever taken place in this country--close to $400 billion in payments, dramatic and voluntary restrictions not only on advertising but on various other forms of promotion, a set of goals for lessened teen smoking, and a myriad of other ideas. A part of that settlement is involved in the amendment before us right now, because that settlement purported to protect the tobacco companies against some forms of litigation, although not all forms of litigation. Those protections have been abandoned or rejected by this bill in return for certain other, less significant limitations on the annual liability of tobacco companies to individual litigation. But, Mr. President, the centerpiece of the agreement with the State attorneys general, without whose work we clearly would not be debating this issue here today any more than we have for the last 10 or 20 years, the centerpiece of that agreement was its voluntary nature. As the eloquent Senator from Massachusetts, who is managing this bill on the other side of the aisle, pointed out, advertising restrictions, upfront payments, document collections, and probably the look-back provisions, are all provisions of that agreement that cannot constitutionally be imposed on the tobacco companies by law. As a consequence, we are faced with a delicious challenge. We can make all the heroic antitobacco statements and speeches that we wish, we can pile on to a greater extent than even the most radical bills that have been introduced into this body, but we cannot force tobacco companies, as long as they are engaged in a legal business--so far, we do not have a bill that would absolutely prohibit the use of tobacco-- we can pass whatever legislation we wish, but we cannot force them to abandon their first amendment rights; we cannot violate the Constitution of the United States. So in the ultimate analysis, we are either going to pass a bill that, however reluctantly, with however much grumbling, the basic tobacco- product manufacturers will accept and follow, or we are simply going to create another bonanza for lawyers in challenging some of the basic provisions of this legislation, in challenges that, by and large, are almost certain to be successful. We may have voted ``antitobacco,'' but we will not have succeeded in a truly antitobacco result. At this point, the tobacco companies have rejected the acceptance of the so-called McCain bill. Perhaps more narrowly, they have rejected the McCain bill as it was reported from the Commerce Committee. Many of the changes that have been made in the bill that is before us are designed, it might well be, as a result of gaining their acquiescence. This amendment, if it is passed, will clearly and necessarily result in their rejection of the entire package. Personally, Mr. President, I believe what we ought to do is in effect to ratify, with some toughening, the agreement that the attorneys general of the various States made after long and careful negotiation and litigation. And we will have the opportunity to do that, or come as close as we can to doing that, when we deal with the amendment that will be proposed by my colleague from Utah, Senator Hatch. But this bill, the McCain bill in its present form, is, in my opinion, a responsible approach toward this problem. I believe that we must deal with the agricultural elements of it, the payments to tobacco farmers, payments that I think are infinitely too high, with the total preservation of the present tobacco program that is included in the Ford provisions, but we will be dealing with that next. I believe a significant portion of the money that the Federal Treasury is going to get from this ought to go to tax relief for the American people rather than into other Government-run programs. But these are elements of this bill that we will debate at some point in the future. They are not elements that will result in the rejection of the bill by those at whom it is aimed on the grounds of the Constitution. This amendment is. Personally, as I say, I would prefer the provisions on litigation that are contained in the attorneys general bill. It may be that at some point or other we will move back in that direction. I am convinced, however, that the amendment that is before us now will destroy any chance of our passing successful antitobacco legislation. Legislation that balances the constitutional rights of those organizations with which we disagree must significantly increase the cost of a pack of cigarettes but not beyond the point where we create a huge black market of contraband cigarettes, a point that I believe would have been passed, exceeded, by the Kennedy amendment yesterday, and a package that can result in something ultimately acceptable to the American people, to the courts, to those who manufacture cigarettes, with the net result that we will reduce, though we will never eliminate, cigarette smoking. I believe that the Senator from Arizona, Senator McCain, who did not seek but was given this assignment, has carried it on in a highly credible fashion with a far greater degree of success than I would have predicted when he started. I think he deserves the thanks, the gratitude of all Members of this body, and to a large extent, at least, our support. I am convinced that he deserves our support on this amendment because this amendment will destroy any chance of being truly successful in getting antitobacco legislation through the Congress, and through the President's signature, in a way that will meet the goals that all of us share.

Mr. GORTON

Mr. GORTON. Mr. President, I approve the Faircloth amendment that seeks to limit attorneys fees in tobacco cases to $250 an hour. In addition to being impracticable--it makes the United States Congress bookkeepers charged with tabulating every lawyer hour in tobacco cases--the amendment simply is unfair. While $250 per hour may be just compensation in some cases, I do not agree that this arbitrary cap is appropriate in all instances. Attorneys who took tremendous risks and initiated cases on novel theories deserve, I believe, to be compensated for more than those who filed the just-add-water complaints. Even late-coming attorneys in these ground-breaking cases deserve to be paid at least as much as the tobacco company lawyers. This amendment would not allow this, however, because, while the plaintiff lawyers who have not yet been paid would be subject to the cap, many tobacco company lawyers have already been paid an hourly rate that is significantly higher than $250 per hour. While I strongly disagree with this one-size-fits-all approach, I share Senator Faircloth's concern with excessive attorneys fees. I suggest, however, that there are other methods and other limits that are far less burdensome on Congress, and will provide a more equitable outcome. I urge my colleagues to join me in opposing this amendment.

Mr. GORTON

Mr. GORTON. Mr. President, I would like to announce for the public that a joint field hearing has been scheduled before the Subcommittee on Interior of the Senate Committee on Appropriations and the Subcommittee on Forests and Public Land Management of the Senate Committee on Energy and Natural Resources. The hearing will take place in Spokane, Washington at the Spokane City Hall, in the City Council Chambers, on Thursday, May 28, 1998, from 11:00 a.m.-4:00 p.m. The Spokane City Hall is located at 808 West Spokane Falls Boulevard, Spokane, Washington. The purpose of this hearing is to receive testimony and examine issues associated with the Interior Columbia Basin Ecosystem Management Plan. Those who wish to submit written statements should write to the Committee on Appropriations U.S. Senate, Washington, D.C. 20510. For further information, please call Amie Brown at (202) 224-6170 or Kevin Johnson at (202) 224-7233.

Mr. GORTON

Mr. GORTON. Mr. President, this debate on the bill of the Senator from Arizona and his opponents, or those who would significantly change it and limit it, is a debate between optimists and pessimists about the American condition. Senator Abraham's proposal stems from the proposition that we are in a society so dynamic, changing so rapidly, with so many new technologies on each and every day, that we can do nothing but benefit by recruiting into that economy the most highly skilled people from dozens of nations around the world who seek to make their contribution to humanity as a part of the United States of America as against the nations from which they come, hobbled by societal and governmental restrictions. A large number of the men and women on whom this battle is being waged have been educated here in the United States and have already begun to become a part of our culture. It is the theory of this bill, a theory borne out by the experience of H-1B so far, that not only are these men and women who seek to become Americans contributing to their own well-being and to the progress of our society but are, in fact, creating jobs for others. The opponents of this bill, those who would restrict it, those who would tie it by all kinds of restrictions so as to make it impracticable for most of the high-tech companies of the United States to use, still believe implicitly in a zero sum economy--that any job, no matter how skilled, taken by someone who was born somewhere else will inevitably result in a job being deprived from some person born in the United States of America. They do this despite the fact that at the hearing on this bill, as I understand it, the Department of Labor could come up with only one example of a true displacement and a guess that there might be two or three others somewhere across the United States. So, Mr. President, if you believe that we are not really competitive, that we can't grow, that every job that one person takes of a skilled nature simply comes at the expense of another job already there, then of course you can support the amendments proposed by the Senator from Massachusetts and by the administration, and wreck a system that has already been so successful that we need to expand it in order to meet the expanding needs of a dynamic and growing American society and American economy. I find it particularly curious that these attempts to say that every recruiting company must follow rules set out by the Government in recruiting and in retention, detailed rules with major penalties for noncompliance, have made no such proposal with respect to the great bulk of American immigration. We get tens, hundreds of thousands of immigrants every year who come to the United States under the guise of family reunification, as seekers of political asylum, as refugees, the great bulk of which have few, if any, skills and over whom there has been a major debate lasting over the last 3 years as to their eligibility for various forms of welfare and who, when they get jobs in order to get off welfare, will be taking the lowest skilled jobs that the United States has to offer where there may well be a real displacement. Yet, these requirements, the requirements of the amendments we are about to deal with, do not deal with these immigrants coming in far larger numbers than the extra 30,000 skilled employees about whom we are speaking at the present time. Mr. President, the proposal of the Senator from Michigan is a proposal for a dynamic future for the United States. It is a proposal that will not only create opportunities for men and women, many of whom are educated in the United States, and others of whom are exceptional people for themselves, but for the new jobs and the new opportunities they will create. Let me just take one or two examples of a specific company and the way in which it would be impacted by the proposed amendments. My friends at Microsoft tell me they will have hired an individual for a 12-month contract to do a very specific task, say, to develop an Internet site for stamp and coin collectors but then determined that there wasn't enough to warrant going on with the project and dismissed the employee. The proposed amendments backed by the administration would prevent Microsoft from hiring any new H-1B worker for any project for a period of at least 3 to 9 months, or if someone is dismissed because they have worked on a project and are experts at something which is now an anachronism, you cannot hire a new one through H-1B for something that looks to the future and is totally and completely different without meeting all of these restrictions. Today we have an example of the Clinton administration's desire to have lawyers and judges design computers. In the amendments this afternoon, quite consistent with that philosophy, we have its desire to act as an employment agency for all of the high-tech companies in America, to tell them who they can hire, when they can hire them, when they can fire them, and what the restrictions on them will be. That is not the way we caused our economy in the course of the last 10 years to be one about which we have many questions, many jealousies of the Japanese and of others to the point at which we clearly dominate the world in the very fields in which this bill by the Senator from Michigan is designed to keep us preeminent. I congratulate the Senator from Michigan for his dogged determination to see to it that we get to this vote and to say that we should deal with it with no amendments other than those of which he approves. Mr. KENNEDY addressed the Chair.

Mr. GORTON. Mr. President, this Senator simply wishes to report that the Kennedy amendments place the Department of Labor in the shoes of most of these employers with respect to the criteria with which they will engage in employment. We have sent the amendments that the Senator from Massachusetts proposes to the companies that will be affected by them and asked them, the people who are engaged in these hiring activities, what the impact will be. They report to us exactly what I have told the Senate here today. They report, in fact, that the Kennedy amendments are so disastrous for their recruiting they will be worse off with 95,000 H-1Bs and the Kennedy amendments than they would be to retain present law. I, for one, am willing to accept the views of the employers in the high-tech community on the impact of these amendments as being exactly what they feel would apply to them. They do not want the Department of Labor making more of their employment decisions than they are making today.

Mr. GORTON. Perhaps, Madam President, I owe the Senator from Massachusetts an apology. Perhaps it is true that he knows better than these high-tech companies whom they ought to hire and when they ought to hire them. Perhaps his effectively granting to the Department of Labor the determination of when a layoff is a layoff and when it is not, when a replacement is an appropriate replacement and when it is not, will be dealt with entirely benignly and will not harm any of our international competitiveness. But, Madam President, I think not. I believe that these companies are better judges of their own needs than is the Senator from Massachusetts or the Department of Labor. And I am convinced that, looking around us, we can see how well this system has worked for the last 10 years, as evidenced by the dynamism and the growth of the American economy matched by no one else. Let's extend what already works rather than destroying what already works. Let's be optimists and not pessimists.

Mr. GORTON

Mr. GORTON. Mr. President, like many of my colleagues who have spoken on the floor this week, I rise in strong support of the IRS Restructuring and Reform Act of 1998. The Senate Finance Committee hearings about IRS agents and supervisors that are completely out-of-control, and who sometimes try to set up honest taxpayers in order to advance their own careers, has made it absolutely clear to every American that the structure and standard operating procedures of the IRS must be corrected--which is exactly what this comprehensive reform legislation will accomplish. This bill creates an oversight board consisting of a majority of private sector members to set IRS policy and strategy, and a new independent Inspector General for Tax Administration in the Treasury Department who will be appointed by the President and confirmed by this Senate. The Taxpayer Advocate position, created in the Taxpayer Bill of Rights II in 1996, is expanded into a system of local Taxpayer Advocates that guarantees at least one advocate for each state in the union. This legislation reverses the burden of proof from the taxpayer to the IRS, and allows for the awarding of attorney's fees and civil damages to taxpayers when they have been wronged by the IRS. Relief is also provided to ``innocent spouses'' who find themselves liable for taxes incurred by their spouse during a marriage. Mr. President, this is by no means a comprehensive list of the reforms included in this legislation--it would not be possible to describe them all in the time I have to speak today. It has, in fact, been calculated that there are over 160 reforms to the IRS included in this bill--all with the goal of making the IRS more service oriented and friendly to American taxpayers. It is for the twin goals of IRS structural reform and the protection of innocent taxpayers that I will be voting in favor of this legislation. Before concluding Mr. President, I must state that while I hail the Senate's consideration and certain passage of this IRS reform legislation, I believe that it only deals with the symptoms and not with the fundamental disease. The fundamental disease is the Internal Revenue Code written by Congress. The current code is so long, so complicated and so full of loopholes that it is literally out-of- control. To deal with the disease, Congress is going to have to deal with the Code. We must either dramatically simplify it or, and this is my preferred course of action, we must repeal the Code lock, stock and barrel and start all over again. We must develop a tax system that is fair, easy for Americans to understand, requires far less money to enforce so that we can have a dramatically smaller IRS, and requires far less money to comply with in fees paid to lawyers and accountants. I am absolutely convinced fundamental reform of the Code should be the primary goal of Congress. It is certainly the goal to which I have dedicated and will continue to dedicate my energy and attention.

Mr. GORTON

Mr. GORTON. Mr. President, I ask unanimous consent to proceed as in morning business for not to exceed 7 minutes.

Mr. GORTON

Mr. GORTON. Mr. President, my esteemed colleague, the senior Senator from Utah, Senator Hatch, was on the floor this morning once again after his letter of last Friday denouncing Microsoft's use of its First Amendment rights to defend itself against an unwarranted attack by the Department of Justice and a handful of state Attorneys General. At one level, at least, he went beyond the remarks in his letter with the totally unsubstantiated claim that the many C.E.O.'s who joined with Microsoft last week and again today to plead with the Department of Justice not to inhibit or to postpone the marketing of Windows' 98 were somehow or another coerced into taking this position. As a consequence the Senator from Utah not only questions the right of men and women leading major American corporations to speak out on behalf of their products, but also insults them by saying they acted outside of their own freewill. Mr. President as I have said, there isn't the slightest evidence for this proposition. These C.E.O.'s were and are defending the right of a magnificent and innovative American corporation to keep on innovating, to keep on providing newer and better products for the people of the United States, and for that matter, for the people of the world. The Senator from Utah buttressed his position by quoting from Judge Robert Bork, who has had a dramatic late-life conversion from free market principles to support willing government intervention in perhaps the most dynamic of all of our free markets. While the Senator from Utah defended Judge Bork's objectivity in this, he failed to note that the judge has recently been hired by Netscape and by others. Now, Judge Bork's historic position is perhaps quoted best in just two lines from his book ``The Antitrust Paradox,'' in which he says ``the responsibility of the federal courts for the integrity of virtue of law requires that they take consumer welfare as the sole value that guides antitrust decisions.'' The sole value that guides antitrust decisions should be consumer welfare. Mr. President, in this entire debate, we haven't heard a breath, a whisper, or a sentence about consumer welfare. This is a campaign by Microsoft's unsuccessful competitors to limit Microsoft's competitive ability to benefit consumers. Consumers aren't complaining, competitors are. Judge Bork has dramatically changed positions from that of a consumer advocate to an advocate of government control. I must confess, Mr. President, that there is precedent for his position. There are antitrust cases that might justify some sort of move of this nature by the Department of Justice. In 1945 in a decision relating to ALCOA, the Supreme Court determined that ALCOA's ``superior skill, foresight and industry,'' were exclusionary of less efficient forms. In 1953, in a case involving the United Shoe Machinery Company, it was decided that United's long line of superior shoe machines and low leasing rates illegally excluded higher cost rivals. Now if that is the theory of antitrust under which Judge Bork is operating, Senator Hatch is operating and the Department of Justice is operating, let them say so. Let them say that they don't want innovation, that they don't like the new developments, and that they do not want advancing technology. But, Mr. President, the whole fight in this case is over whether or not we are going to permit the next generation of operating systems to go to market. It is that that is at issue, and only that. Finally, Mr. President, in this connection, Senator Hatch ended his remarks with a line from the Rolling Stones. In the interests of fairness and impartiality, I think that we ought to try another one. When I hear Senator Hatch defending Janet Reno and lawyers of the Justice Department I figure he has been listening to ``Sympathy for the Devil'' a little too much lately. There is another Rolling Stones song that describes what Microsoft does for it's customers: a little hit called ``Satisfaction.'' Microsoft has been satisfying their customers for 20 years and that's what they ought to continue to do. To the Senator from Utah and everyone at the Justice Department who wants to stand between Microsoft and its customers, all I can say is, fellas, ``you can't always get what you want.''

Mr. GORTON

Mr. GORTON. Certainly.

Mr. GORTON. Mr. President, 10 days ago in a column appearing in the Washington Post, Charles Krauthammer wrote: By ruling Central Europe out of bounds to Russia, NATO expansion takes one of this century's fatal temptations off the table. It is the easiest U.S. foreign policy call of the decade. Why is it the easiest foreign policy call of the decade? Because the North Atlantic Treaty Organization for 50 years has preserved the peace of Europe and the peace of the United States. As a result of the North Atlantic Treaty Organization, the Soviet Union literally ceased to exist. All of this was accomplished by a military alliance that never was required to fight or to sacrifice its young men and women in a military conflict within the bounds of that organization. Why did the North Atlantic Treaty Organization come into existence in the first place? Because the first half of this century showed that both world wars began in Central Europe because of the weakness, the instability, the unsettled nature of the former empires and the then national states in that part of Europe, occupied almost wholly by the Soviet Union at the end of World War II. The West could only be defended by a military organization of which the United States was a part. Behind the magnificent defensive line, the parapets, built by the North Atlantic Treaty Organization, Western Europe became free, democratic, and prosperous. During that 50 years, we and the Western Europeans invested not an inconsiderable amount of money in communicating those ideas of freedom to the people of Central and Eastern Europe through the Voice of America and other such organizations. It is clear now that nothing was desired by the people of the Czech Republic, Poland, and Hungary more than to join the free and prosperous countries of Western Europe. Partly because of our efforts through NATO, partly because of our economic success, and partly from their growing dedication to freedom, they freed themselves--they freed themselves--from the Soviet Union. The Soviet Union disappeared and became Russia, a country still unstable, a country with candidates for President in the year 2000 who would desire nothing more than the restoration of the old Soviet Union. So the rationale of the expansion of the North Atlantic Treaty Organization is to say, no; these countries freed by their own efforts and our own efforts will stay freer. They will be to us as Germany and France and Normandy have been for the last half century. What history teaches us is that a political vacuum filled with weakness and irresolution is a temptation to an aggressor. Countries a part of the North Atlantic Treaty Organization were not such a temptation, even at the height of the power of the Soviet Union. Accession to NATO is as close to a guarantee as we can possibly come of the fact that our sons and daughters will not die in Warsaw or in Prague or in Budapest any more than they were required to do so in Oslo or in Paris in the course of the last half century. Mr. President, this is the easiest foreign policy call of the decade. The North Atlantic Treaty Organization will lend strength to us, a contribution to our own defense, but most importantly the security of countries that have not been secure that want to join us in prosperity and in safety as they have in freedom. The amendment of the Senator from Iowa is simply another attempt to make these members second-class members. We have already stated that we made no commitment at all, a zero commitment, to subsidize the national expenses for these countries. How much, if any, we subsidize them in the future is a decision that can and should be made in the future and not in the course of this debate. Even more mischievous, in my view, Mr. President, are amendments to say that there will be no further expansion, that we will leave a vacuum unless certain preconditions are made. For more than 50 years the United States of America refused to recognize the annexation of the Baltic republics by the Soviet Union. When their cause was deemed to be a hopeless cause by almost everyone, they, too, have freed themselves. They, too, want at some future date to be a part of NATO. They, too, create a vacuum at the present time in the power structure of Central and of Eastern Europe. To pass an amendment that is likely to be proposed by another of my colleagues that singles them out as being countries we will not want to defend or be a part of without special circumstances, in my view, is simply an engraved invitation to some future Russian Government to say: We're coming back in; we don't care about your desire for freedom. You're a part of us whether you like it or not. And, look, the Americans have in effect in the Senate said that's OK. That is the essence of instability and of uncertainty, not only for the nations immediately involved but for all of us. Certainty created through 50 years by the North Atlantic Treaty Organization is the best guarantor of peace. I am convinced we should reject all limiting amendments, admit these three nations, and judge in the future what additional nations should be admitted to NATO--nations, in my opinion, consisting of all of those that become real democracies, real free market countries, with a real desire not only to be a part of the North Atlantic Treaty Organization but to contribute their own strength to it. We should reject the Harkin amendment. We should grant the accession of the three countries before us at the present time without further conditions, and in the good faith that their accession will strengthen peace, strengthen their democracy, and strengthen our own security. Mr. McCAIN addressed the Chair.