T. Gorton

Mr. GORTON

Mr. GORTON. Only by reporting a bill and having that bill passed and signed by the President.

Mr. GORTON

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 President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. GORTON

Mr. GORTON. Mr. President, I would like to recognize the historic achievements of Liz Heaston of Richland, WA. Last Saturday, Liz became the first woman to play in a college football game. Her performance as place kicker for the Willamette University football team resulted in kicking two extra points in a victorious effort against Linfield College. This event also strikes a special chord for me because Liz is the daughter of Suzanne Heaston, a member of my State staff in Richland, WA. What is equally amazing about this young woman's accomplishments last Saturday is that her feat was accomplished after playing a full soccer game, where she is the star defender on the Willamette University women's soccer team, ranked 14th nationally in the NAIA. It was Liz's tremendous abilities on the soccer field which led the Willamette football coaching staff to recruit Liz onto the football field. While Liz may not have a future football career ahead of her, Saturday's milestone sets a tremendous precedent for future trailblazers in womens sports. The athletic accomplishments of Liz Heaston, both in soccer and football, reinforce the role sports can play in helping our daughters discover and realize their potential both on and off the athletic field. Mr. President, I suggest the absence of a quorum.

Mr. GORTON

Mr. GORTON. Mr. President, I would like to add my name as a cosponsor to S. 219, the Agricultural Products Market Access Act of 1997 and to commend Senators Grassley and Daschle for their excellent work on behalf of American agricultural exports. S. 219 will set up a system for agricultural trade identical to that used to identify violations of intellectual property rights--the ``Special 301'' procedure. Specifically, the bill requires the Office of the U.S. Trade Representative to annually designate as priority countries those trading partners having the most egregious trade barriers to U.S. agricultural products. USTR would then initiate a streamlined 301 investigation of the trade practices of those countries identified to determine whether their agricultural trade barriers merit sanctions or other retaliatory actions. As many of my colleagues know, my home State of Washington is a major producer and exporter of agricultural products. In fact, agriculture is Washington's No. 1 industry employing well over 100,000 people directly and accounting for 20 percent of the State's total exports. I and my constituents, however, are continually frustrated by the unfair and irrational barriers erected to our agricultural exports in countries throughout the world. The most recent example is Mexico's imposition of a 101.1-percent prohibitive duty on red delicious and golden delicious apples. This tariff hike is based on claims by Mexican apple farmers that United States producers are selling apples to Mexico at half the fair price. There is no factual basis for these claims, yet Mexico has successfully closed the United States-Mexico border to apples and cut Washington apple producers off from their largest export market. The administration has pledged to work to resolve this impasse, but the process is likely to be long and hard fought with no guarantee of a solution through the NAFTA or WTO dispute resolution process. Japan too has continually used protectionist measures to lock Washington apples out of its domestic market. On questionable phytosanitary grounds, Japan has erected barrier after barrier to Washington apples. Under the current protocol for the export of apples to Japan, only red delicious and golden delicious varieties may be shipped to Japan. Since the Japanese market was first opened to United States apples in 1994, Japan has required the cold treatment and fumigation of all United States apples. While scientific data supports the United States contention that this type of treatment is unnecessary, Japan insists on subjecting all additional United States apple varieties to the same costly and time-consuming tests. Washington's wheat exports also face formidable export barriers. Since 1972, the People's Republic of China has maintained a nontariff barrier on Pacific Northwest wheat affected by TCK smut. Over the past 20 years, the United States has presented Chinese officials with scientific evidence that conclusively shows there is no risk of introducing this smut into China, but the Chinese Government refuses to budge. The continued ban on our wheat only adds to our large and growing trade deficit with China which has already reached $40 billion. These are just a few of the most egregious examples of the seemingly endless obstacles to Washington's agricultural exports. The time has come for the U.S. Trade Representative to take quick and decisive action against all nations that engage in unfair trade practices to lock out U.S. agricultural exports. S. 219 will give the administration the tools it needs to do just that. If this legislation can accomplish even half of what the ``Special 301'' process has done to protect U.S. intellectual property, we will be well on our way to a freer, fairer system of international trade in agriculture. Mr. President, Washington, and every State in the Nation engaged in agricultural trade will gain if this legislation is signed into law. I commend my colleagues Senators Grassley and Daschle for their insight and hard work in devising this intelligent solution to a difficult and pressing problem and am proud to join them as a cosponsor of S. 219.

Mr. GORTON

Mr. GORTON. Mr. President, my remarks are directed at the two distinguished managers of the bill, and I hope they will be able to respond to the concerns I am about to raise. On July 22, while this bill was being debated on the floor of the Senate, I shared with the Members of the Senate a series of scandals across Indian country with respect to a housing program for low-income Indian reservation residents. The scandal occurred in my own State in Washington in the construction of a 5,000 square foot, $400,000 home under this low-income program for the chairman of the housing council of the particular tribe, and similar activities in other reservations across the country in which money had been misused not for the benefit of low-income Indians on reservations but for the benefit of the people who were managing the money themselves, most of whom were above average in income. As a result of that set of facts, themselves a result of a long investigation on the part of the Seattle Times, the Senate unanimously passed an amendment that says ``The Secretary of Housing and Urban Development shall bar any person from participating in any activity under the native American housing block grants program under title I of the Native American Housing Self-Determination Act of 1996 or any activity under the jurisdiction of the Department of Housing and Urban Development where such person has substantially, significantly, or materially violated the requirements of any such activity. The Secretary shall pursue reimbursement for any losses or costs associated with these violations.'' Now, Mr. President, the two managers were delighted to accept that amendment. The Senator from Missouri told me a week or so ago that the House was greatly resistant to these provisions and that he greatly feared he would have to drop them. In fact, he has done so, Mr. President. I simply would like to get his explanation as to why Members of the House of Representatives seem to feel that someone can ``substantially, significantly, and materially violate the requirements of the law'' and suffer no consequences for doing so? This seems to me to be a ratification of this widespread fraud. At least two people working for the Department of Housing and Urban Development were transferred, another has been forced into early retirement as a result. But why is it that a simple prohibition against what amounts to total fraud--effectively stealing not just the money of the people of the United States, but of poor members of these tribes, now is suddenly dropped from the bill? What sanction contained in this amendment was regarded as so obnoxious by Members of the House of Representatives, I ask my distinguished friend and chairman, that they refused to include it in the final bill?

Mr. GORTON. Mr. President, I appreciate those expressions on the part of my friend from Missouri and I emphasize that I know he supported this provision and that he did his best to keep it included in the bill. I hope that at some future time in authorizing legislation or otherwise we will be able to do something similar to this. I, too, have heard the assurances of the Department of Housing and Urban Development that this will not happen again, but we have gotten those assurances in the past without them having been carried out. I summarize by saying how anyone could say that a person who ``has substantially, significantly, or materially violated the requirements'' of this law should somehow or another not even receive so much as a tap on the wrist and should be allowed to go on doing in the future what that person has done in the past, is beyond my understanding. I am sorry this is not in the bill. I don't think the excuses of its opponents and the House conferees are adequate in the slightest, but I do know that the chairman and the ranking minority member sympathize with me on this and will support us as we continue on a crusade for honesty and straightforward dealing and using this money for the purposes for which it was intended. I know they will support that in the future.

Mr. GORTON

Mr. GORTON. I am happy to yield to the Senator.

Mr. GORTON. Mr. President, in 1974, impelled by certain individuals and groups who felt that too much money was being spent on political campaigns and on political speech, the Congress of the United States passed a law limiting the amount of money that a candidate for Federal office could receive from any individual source, and limiting the amount of money that a candidate for a Federal office could spend advocating his or her election to that office. The Supreme Court of the United States upheld the half of that statute that limited the amount of money that a candidate could seek from any given individual or organization or group; but about the proposition that a candidate could be limited in the amount of money that he or she could spend on a campaign, the Supreme Court of the United States made this statement--and I quote A restriction on the amount of money a person or group can spend on political communication during a campaign necessarily reduces the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached. This is because virtually every means of communicating ideas in today's mass society requires the expenditure of money. The distribution of the humblest handbill or leaflet entails printing, paper and circulation costs. Speeches and rallies generally necessitate hiring a hall and publicizing the event. The electorate's increasing dependence on television, radio, and other mass media for news and information has made these expensive modes of communication indispensable instruments of effective political speech. Being free to engage in unlimited political expression subject to a ceiling on expenditures is like being free to drive an automobile as far and as often as one desires on a single tank of gasoline. And the Supreme Court of the United States found invalid, as a violation of the fundamental first amendment right of free expression, any such limitation. The same mindset that gave us those laws and that has forced those individuals or groups who feel vitally interested in the election or defeat of a candidate to spend money in other ways, often through the political parties that sponsor those candidates, now has brought this McCain-Feingold bill to the floor of the U.S. Senate. Finding it ineffective simply to limit the amount of money that candidates can collect from a given individual, the bill now seeks to limit severely the amount of money that political parties can collect with which to express their message to the American people. The fact that this flies in the face of most thoughtful academics observing the political scene in the United States who call for greater party responsibility and a greater role for political parties to play in order to create a greater degree of responsibility and responsiveness in carrying out the will of the people as expressed in elections, the McCain-Feingold bill seeks to tie the hands of parties and to render them largely ineffective. The sponsors of the bill do recognize, however, that there are other methods of communicating political ideas. While they did not attempt to limit the right of other individuals or organizations in communicating their ideas directly, and in some cases not at all, they do attempt, as the Senator from Kentucky has just pointed out, to take a form of communication called issue advocacy--that is to say, making your views known to the people of the United States with respect to issues that come before the Congress of the United States--and force it into a category which they define as express advocacy, essentially whenever the name of a candidate or a Government officeholder is used, and once again provide limitations on the amount of money that can be collected for the expression of that form of advocacy. As the Senator from Kentucky has so clearly pointed out, not only is that portion of the McCain-Feingold bill unconstitutional on the basis of a long line of Supreme Court decisions, its unconstitutionality was reaffirmed this morning, this very morning by the refusal of the Supreme Court even to listen to a challenge to a first circuit decision on exactly that subject. So what we have in McCain-Feingold is, in addition to the limitation on the amount of money that can be spent or contributed to individual candidates, an additional limitation on the amount that can be contributed to political parties, but no limitation at all on the amount of money that can be spent independently of those political parties by the widest range of groups and individuals in the United States who have a vital interest in the actions of this Congress unless those groups make a mistake which is absolutely unnecessary to make and use one of a handful of magic words. Finally, of course, McCain-Feingold does not attempt in any respect whatsoever to limit the commentary, either in news columns or on editorial pages, on the part of the newspapers in the United States or similar commentary on radio and television stations. It isn't long, however, since exactly such a set of potential restrictions were proposed. With a degree of intellectual honesty, absent from this debate, in February and March of this year many of those who are here today promoting the McCain-Feingold bill recognized that the goals they sought were blatantly violative of the first amendment to the Constitution of the United States and proposed to amend the first amendment. At this point, Mr. President, I think it not at all inappropriate once again to read into the Record what those Senators--I think some 30-plus of them altogether in the final vote--proposed to do to the first amendment to the Constitution of the United States. They proposed to say: Congress shall have power to set reasonable limits on the amount of contributions that may be accepted by, and the amount of expenditures that may be made by, in support of, or in opposition to, a candidate for nomination for election to, or for election to, Federal office. It seems clear to me, Mr. President, that that constitutional amendment, were it placed in the Constitution of the United States, would have permitted Congress to state that the New York Times, or a newspaper in a city of 50,000 people in a city in Kentucky, could have its commentary on election campaigns limited in the same way that the present law limits contributions to candidates today. Now, Mr. President, I think a newspaper--I will take one of my own-- say the Tri City Herald in central Washington, with a circulation of some 40,000 newspapers a day, if it writes an editorial in favor of my candidacy, which I am pleased to say that it has, and distributes 40,000 copies of that newspaper, it has exceeded that $1,000 campaign contribution limit if the cost of writing and printing and distributing that newspaper exceeded 2.5 cents a copy. Lord knows by how much the New York Times would exceed that contribution by making any kind of commentary on behalf of or in opposition to a candidate for political office. Lord knows how much more such a commentary on network television news could be considered to be worth. Yet, Mr. President, at least the proponents of that constitutional amendment were being intellectually honest and at least they were being consistent, or would have been consistent had they been willing to say they wanted to limit the way newspapers and radio stations and television stations could comment on politics, because, obviously, if every other form of communication is going to be limited, how in the world can we justify letting those few people in the United States with enough money to own the newspapers or having the good fortune to be on their editorial boards and, for that matter, to write news stories about politics not be limited? Of course they should. But, Mr. President, the first amendment was written not when we had television or radio stations, but when we had thousands of newspapers in the United States of America, most of them speaking much more sharply about candidates and issues than do newspapers today. And the men who wrote the first amendment to the Constitution of the United States knew that every one of those newspaper publishers had a greater first amendment right by the definition used by the promoters of McCain-Feingold than did the average citizen who did not own or write for a newspaper. But they consider that right of mass communication about political ideas to be a fundamental liberty of the people of the United States. Now we have opponents of this bill who say it is not only not a fundamental liberty of the United States; it is such a great evil that we need effectively to muzzle them. Hark back to the Supreme Court in which the Supreme Court says virtually every means of communicating ideas in today's mass society require the expenditure of money. We have proponents who say we should not allow the expenditure of money in amounts that are sufficient to communicate those ideas. Having limited the amount of money candidates can get, they now wish to limit the amount of money political parties can get. It is clear they wish to limit the amount of money that these independent groups can get, but in the absence of their constitutional amendment, they can't do that. Now, last year, Mr. President, I asked this question: Were the expenditures of candidates or of political parties or of third party interest groups the least responsible? The answer, obviously, is the latter. A candidate whose name must go on all political communications can be immediately called to account for falsehood and, in fact, can readily be called to account even for what is considered to be an unfair characterization of his or her own candidacy or an unfair criticism of an opponent. Expenditures by political parties don't carry that same degree of responsibility. The occupant of the chair at the present time is not really responsible for the communications of the Kansas State Republican Party, nor am I in my political party in my State. We will catch a certain degree of criticism for what our parties do, but we at least have plausible deniability. But now having forced even the parties out of the field of effective communication, we leave all political communication to the newspapers and the television stations and those organizations, whether they are of the left or the right or of a narrow special interest, almost wholly to the field of unregulated communication for which neither beneficiaries have any responsibility nor the victims any effective way of responding. The Senator from Oregon, during the course of this debate, has pointed out the impact of a law very much like the one that we are discussing here on politics in Oregon. There the limitations on contributions for candidates were even tighter. The point that he made of what happens in the real world was the candidates can't raise very much money, the political parties are fairly weak, so campaigning became more negative than it had ever been before--not only more negative because of the use of the undocumented constitutional rights of these outside groups to criticize, but from the fact that almost all of their communication was critical and negative in nature, and the limitations on the candidates made it effectively impossible for them to answer. My own State, Mr. President, is going through pretty much the same experience. The more the limitations on the candidates, the greater the expenditure of money independently in so-called issue advocacy will be, and the more negative political communication will be, as it was in the classic example of the tens of millions of dollars spent by the labor unions in 1995 and in 1996. Now, Mr. President, one other point, and I will have to admit, along with everyone else who has spoken today, almost everything that has been said today has been with respect to the revised McCain-Feingold bill. The issue before the Senate, however, is the Lott-Nickles amendment. The same analysis does not attain to the Lott-Nickles amendment because it simply says that labor unions and labor union-type organizations, while they remain entirely unlimited in the way in which they can spend their money, and with respect to issue advocacy, can only be involved in politics by the use of money to the extent that there are members who have paid dues into those unions who allow their money to be spent in such a fashion. It is curious in the mind of this Senator that such an obviously just policy--not allowing my money, your money or anyone else's money to be used to communicate ideas with which you or I or that third party disagrees, a proposition that is clearly constitutional--should be considered to be a poison pill or the death knell for campaign reform. What could be more fundamental, Mr. President, than the idea that the individual whose money is being spent in connection with the communication of political ideas should have some control over how that money is spent? Now, Mr. President, I am in a position to tell you how that works in practice because another element of one of the latest of the campaign reforms in the State of Washington was to make just such a provision. When that provision became law, 80 percent or more of the members of the Washington Education Association, the teacher's union, refused to allow their money to be used in politics at all. I have just heard, though I can't be entirely certain of this statistic with respect to other labor unions, the percentage of members who are willing to permit their money to be used is in single digits. Presumably, the members of those organizations prefer their money to be used for the primary function of a union with collective bargaining rights and not even on politics with which they agree, much less politics with which they disagree. That, Mr. President, is the reason the opposition to this amendment is so fierce. That is the reason we are told most of the proponents of McCain-Feingold will filibuster this very bill if it is included. It is just because the opposition on the part of members of these organizations to spending their money in the way in which it has been spent over the last several years is so deep, so broad, and so fierce. But in this case, I want to state once again, Mr. President, we are not talking about a matter over which there could be any serious constitutional challenge at all. We are simply talking about whether or not it is good policy. We are talking about something that would meet the goals of McCain-Feingold to the extent that their goals are to limit the amount of money being spent on political speech. It would certainly limit it in connection with the last campaign. Now, I am not convinced of the case that we are spending too much money on political speech. I believe the wide diffusion of political ideas was exactly what the first Congress of the United States had in mind when it passed the first amendment. However, if you are going to limit political speech, you ought to do so fairly and across the board. To do so fairly and across the board, you must gut the first amendment to the United States, you must change the Constitution, and you must say we are going to have Government--Members of this body and the appointed Federal Election Commission--decide what speech in the political context is legitimate and what speech is not, and the definition of that challenge is its own death knell because, defined in that fashion, there aren't 5 percent of the American people who would agree. We have before the Senate, Mr. President, a flawed bill with a flawed and unconstitutional goal, together with the breathtaking statement that should we make the fundamental requirement that a man or woman's money not be spent on politics with which he or she disagrees, that we are killing this flawed proposal. Well, I don't think the bill becomes any more constitutional by the adoption of the Lott-Nickles amendment. I don't believe the obvious constitutional flaws reiterated once again today by the Supreme Court of the United States are improved by it. Abstract fairness probably is. But a bill that says that there is something wrong with the communication of ideas--the last Democratic speaker criticized the way in which campaigns were conducted, apparently feeling that maybe we ought to have a governmental entity that says what an individual says in a political campaign is fair or unfair. We have created the greatest and strongest democracy in history and the greatest debate over political ideas with the first amendment as it is. I, for one, believe we ought to leave it alone.

Mr. GORTON. It would certainly increase the price of television stations and television networks. It would be a bonanza to those corporate owners, as any other corporation that had a political agenda would find the only way it could effectively communicate its ideas would be through the ownership of a television network or a major metropolitan newspaper and the like. But the point made by the Senator from Kentucky is a most interesting one. Westinghouse and Disney and GE don't need to give soft money to parties, do they? They don't need to come up with their political ideas indirectly. They have the ability to communicate them directly, without control, without limitation as to amount, to the people of the United States. So the Senator from Kentucky has made my own point better than I did myself. If you are going to limit political speech effectively, you are going to have to limit everyone's political speech. And the fewer the exemptions from those limitations, the more valuable those unlimited mouthpieces are because they cannot effectively be countered, except by someone else with the exemption. I want to repeat one more time that I believe the constitutional amendment that was seriously debated, but defeated, on the floor of this Senate in March would have permitted limitations on what those television networks could have done, what the New York Times and every newspaper in the United States could have done. And it is the very fact that that constitutional amendment would have allowed such limitations that is the reason it should not have gotten one-third of the votes of the Members of this body. It should not have gotten any at all. Once, however, you determine that we should continue the more than 200 years of unrestricted freedom on the part of the mass media, it becomes increasingly difficult to justify the proposition that we should limit the ability to communicate of everyone else. As the Supreme Court decided more than 20 years ago, the ability to use money and to use, in turn, the mass media is at the very heart of the first amendment rights. The Senator from Nebraska, who was here before, it seemed to me, had the appropriate answer to this question. Political contributions should be freely given, not coerced. They should be immediately publicized and made available. Those who violate those laws of disclosure ought to be appropriately punished. None of these elements is a part of the law today, and that is where reform ought to start. Mr. ALLARD addressed the Chair.

Mr. GORTON. He would.

Mr. GORTON

Mr. GORTON. I ask unanimous consent, Madam President, that I be permitted to speak in morning business at the conclusion of the remarks of the Senator from Michigan.

Mr. GORTON. Would the Senator from Michigan yield for a unanimous- consent request?

Mr. GORTON

Mr. GORTON. Madam President, yesterday, President Clinton assailed my proposal to give more money to schools all across the country and restore authority for directing those funds to parents and teachers and school board members. The debate about the future of our public schools is vitally important to the future of this country. A front-page Washington Post article today notes: ``. . .more parents than ever are choosing alternatives to public education for their children. . .'' and are doing so in such great numbers that the phenomenon is starting to resemble a revolution. We should read this as a warning signal that parents are beginning to lose faith in their public schools. We must act decisively to restore that faith, improve education, and prepare our children for their future. More of what we are doing now is not enough. On one point, the President and I do agree: We can improve public education. We part company, however, on who can best make decisions to improve our public schools. I believe that parents and teachers and local school board officials will make the greatest strides in improving education because they are in our homes and classrooms and high schools with our kids. But with his remarks yesterday, President Clinton says to parents and teachers: I don't trust you. I find it remarkable that the President believes that restoring decisionmaking authority to parents and teachers and our elected school board members is somehow dangerous. The Gorton education reform amendment increases the amount of money school districts have to work with, thus, expanding the programs they can target to both disadvantaged and high-achieving students. A recent study found that if Federal education funds for kindergarten through high school are sent directly to school districts, as the Gorton education reform amendment proposes, school districts would receive an additional $670 million. Why would they receive more? Because the funds would bypass the Department of Education and State educational bureaucracies and save that amount in administrative application and compliance costs. Washington State school districts would receive $12.5 million more to target to their most needy students; Arkansas schools would receive $7 million in increased education funds; Mississippi would get $9 million to target disadvantaged students and other school programs. President Clinton and opponents of giving parents and teachers a larger role in our children's education presume that local school districts will act irresponsibly if Federal strings disappear. This adds insult to injury. How can the President say with a straight face that programs would be ``abolished'' just because a bureaucrat does not direct them? Those who share the schools and classrooms with our children every day are not going to squander an opportunity to use an increase in Federal funds to address the problems they see every day. It is also extremely disingenuous to state that my proposal would somehow ``close the Department of Education,'' as President Clinton suggested yesterday. Higher education and dozens of functions relating to education in general will remain in the Department--perhaps too many such functions--but hundreds of bureaucrats who now write rules and regulations to inflict on every school in America will go, and their salaries will be used to hire new teachers and provide better education in every school in our Nation. Just on Sunday, Madam President, the Columbus Dispatch, in an editorial, summarized the dispute in this fashion: It's hard to see what the U.S. Department of Education has accomplished in its 20 years of existence to improve this country's system of schooling. The Senate's block grant approach is worth a try. The will to change and improve our public school system and restore parents' faith in the quality of education it can provide to our kids is there. It is at home in our cities and towns and communities. Will we untie parents' and teachers' hands and let them do their jobs? The biggest point I believe today's Washington Post article makes clear is that parents are not turning to the Federal Government to improve their kids' education--parents and teachers are coming up with alternative solutions because they want the best possible education for their kids. We must return and restore more freedom, not less, to our local schools, so that we can restore the public's faith in public education. Mr. GLENN addressed the Chair.

Mr. GORTON

Mr. GORTON. I rise for a brief colloquy with, the manager of the bill. Mr. President, section 104 of the continuing resolution states that no funds available or authority granted shall be used to initiate or resume any project or activity for which appropriations, funds, or other authority were not available during fiscal year 1997. As the chairman knows, the fiscal year 1997 interior--or is it Omnibus-- appropriations bill included language which prohibited the use of appropriated funds to review or modify sourcing areas previously approved under the Forest Resources Conservation and Shortage Relief Act [FRCSRA] of 1990. The fiscal year 1997 language goes on to further prohibit the use of funds to enforce or implement Forest Service regulations for this act that were issued on September 8, 1995. As the chairman is also aware, I have included language in the fiscal year 1998 Interior appropriations bill that clarifies FRCSRA. Am I correct in my interpretation of the continuing resolution, that the provisions related to FRCSRA in fiscal year 1997 are extended for the duration of this CR?

Mr. GORTON

Mr. GORTON. Mr. President, in the Energy and Water Appropriations Conference Report, which this body may consider as early as tomorrow, is a provision that encourages the Corps of Engineers to make a decision on permits for a 50-foot dock extension at the Port of Seattle. Over the past several years the Port of Seattle, Muckleshoot Indian Tribe, and Corps of Engineers have been involved in a debate over the replacement of a 350-foot wood dock with a 400-foot concrete dock at the Port of Seattle. In an effort to move this process forward and break the deadlock between the parties, I included report language in the Energy and Water Appropriations Conference Report asking the Corps of Engineers promptly to consider the permit issue. Due to the continued cooperation and hard work of the Muckleshoot Indian Tribe and Port of Seattle, an agreement was reached this past Friday evening over the dock extension. I would like to praise the judgment and cooperation of the Port of Seattle and the Muckleshoot Indian Tribe both. Their willingness to work together has not only averted a protracted conflict but also provide a positive example for other local governments and tribal governments in reaching agreements under similar circumstances. As a result of this agreement, the language which I included in the Energy and Water Appropriation Conference Report is redundant and no longer necessary. I have discussed this point with Congressman Norm Dicks in the House and would like the official record to show that both the House and Senate agree that this language is effectively voided by the agreement. Furthermore, I would like to request that the final version of the Energy and Water Conference Report that will be considered by the Senate not contain this language. In any event, that language should be treated as having no effect.

Mr. GORTON

Mr. GORTON. As it was they could take the money and avoid the heat. I thank the Senator from Kentucky for his courage in this matter and the clarity with which he speaks on it. We simply cannot, consistently with the Constitution of the United States, limit political speech. We can only limit responsible political speech. We can only force money from responsible challenges into less responsible ones. We can only increase the power of the press, the very group that is most anxious to limit speech by others than its own members, and/or do what some proposed to do just a few months ago, say the first amendment doesn't work anymore and we better change it. As I said at the beginning of my remarks, that may have been, as it was, terrible policy, but it was at least intellectually honest. To present us with an unconstitutional bill is neither. Mr. McCONNELL addressed the Chair.

Mr. GORTON. I will.

Mr. GORTON. Mr. President, many of the constitutional questions that are debated here today in the context of the validity of this bill have already been debated this year in a more open and more refreshing manner. When those who propose to limit free speech on political issues had the courage to propose an amendment that would restrict the first amendment right of free speech on political issues, while they were, in my view, entirely wrong, while they proposed a disaster to the most fundamental basis of free government, they at least had the intellectual integrity and consistency to recognize that what they wanted to do was inconsistent with the first amendment as it has existed from the time of the first Congress until this day. Now they produce a bill with two fundamental flaws. In most respects--many at least--it is clearly unconstitutional and, in every other respect, it is bad policy. I think I would like to make a few remarks about the way in which political debates are conducted in this country surrounding election campaigns. I will try to deal a little bit about the way the McCain-Feingold bill treats these various communications. And perhaps I will elicit a few additional remarks from my friend from Kentucky in doing so. In 1974, when the present campaign finance law was passed--with the support, I may say, of just those people and organizations and newspapers that now find how great a failure that 1974 law was and, like the drunk waking up the morning after with a hangover, prescribed the hair of the dog that bit them--their focus was on candidates, on the source of money for candidates to express their ideas through the mass media. In that focus, they prohibited a wide range of sources of money and greatly limited other sources of money, so that a candidate may not take more than $1,000 per election from an individual, or more than $5,000 from a political action committee, an organization that was created, in effect, by that 1974 law. So they placed severe limits on the one kind of political debate for which each candidate is totally responsible. No candidate can avoid responsibility for what he or she says in public, in print, or on television. This forum of advocacy is now subject to severe limits as a result of the 1974 law. Now, it is interesting to note that much of the support for the kind of bill or the kind of ideas that are reflected in McCain-Feingold, the kind of ideas that have just been presented by the Senator from New Jersey, stem from the fact that mass campaigning costs money, the money has to be raised by individual candidates, and the candidates don't like to spend the time raising money that the 1974 law requires. So we are told that the candidates ought to be supported by a subsidy from the Federal Government or a subsidy from the private sector in the form of noncompetitive prices for television advertising. Mr. President, I can certainly sympathize with the views of those who do not like raising money for their own candidacy. I couldn't possibly claim that I do myself. But to exactly the extent that it takes candidates too long to do so is a direct result of the reforms of 1974. And this reform in McCain-Feingold will make that situation far worse because the limitation on sources for candidates are tightened. So candidates, in order to get their own message out, will have to spend more time raising money. As an incidental, I think it is not at all unhealthy that we who have this rather exalted status as U.S. Senators should be forced to go hat in hand to our constituents and to others interested in the political process and show a little bit of humility and ask for that support. Many of the supporters of reform feel that that is somehow demeaning, and that the Government ought to come up with the money that they use to engage in their candidacies. Personally, Mr. President, I think they might just as well advocate lifetime terms for Senators. Certainly no one would be subject to pressures from campaign contributors under those circumstances. But the very mention of that process simply shows that an attempt to avoid responsibility is an attempt to avoid responsibility, whether it is called lifetime terms and avoiding democracy entirely, or whether it simply comes in the guise of saying that the Government ought to pay for these campaigns. In any event, Mr. President, the first defect, though perhaps not an unconstitutional defect, of this bill is that it takes the very set of rules that have created the demand for more rules for indirect spending and makes them worse. It takes the very criticism of the time candidates spend raising money and requires them to spend more time making money, and does it in the one area in which the candidate can be called to order, can be held responsible by his or her constituents: that is to say, spending directly by a candidate on his or her own campaign. The immediate result of a restriction of this first form of free speech--that on the part of candidates--was to push those who are vitally interested in the decisions that we and other candidates across the country make with respect to public policy away from supporting candidates into supporting political parties. Most academics over the course of the last 30 or 40 years have decried the decline of political party discipline and accountability, and have said that one of the shortcomings of American democracy is that parties don't mean very much; that they have very little political influence even over the candidates who are elected using the party name, and have called for methods of creating a greater degree of cohesion and party responsibility. Yet, when the two major political parties have discovered a method of raising money and are advocating directly or indirectly the election of candidates carrying their name, that very system is now considered by the reformers to be such a terrible tragedy as to cause the introduction of a bill that will make it practically impossible for either major political party to raise sufficient amounts of money, either to call for a certain degree of responsibility on the part of its candidates, or to get its message across to the American people. I think I do agree, I say, Mr. President, to my friend from Kentucky, that that portion of constitutional opinion of the 126 scholars, or whatever the number was that he mentioned, with respect to limiting contributions to political parties, is probably correct. I seriously doubt a form of contribution can be prohibited. But on the basis that contributions to candidates can be limited, contributions to the parties can probably be limited. It doesn't make it a desirable course of action. It makes it a highly undesirable course of action.

Mr. GORTON. There is little question but that that would be the result. In fact with my own views on where the constitutional line is likely to be drawn, it seems to me that would be almost the inevitable result of the passage of McCain-Feingold. Its restrictions on money to political parties might well be upheld, probably would be upheld at least in part. It is possible that they would be upheld in their entirety. Their other restrictions will inevitably be found to be unconstitutional. So we have now restricted the candidate's ability to communicate his or her ideas. We have restricted the political party's ability to reflect their ideas and the ideas of their candidates, the Democratic Party as much as the Republican Party. But because, at least as politics are constituted today, those additional interests, especially organized labor, are primarily on the Democratic side, we have enhanced their ability to communicate, or we have increased their competitive ability to communicate. Let's put it in that fashion. More of the airwaves, more of the mass media will reflect their views. For that reason, because of the general bias of most newspapers and their reporters and their editorial writers and television commentators, Republican candidates historically depend far more on their own ability to raise money and the ability of their party to raise money than have candidates on the other side. But there is a risk. The law of unintended consequences could easily result in a few years in a reversal of that situation, and the benefits of the spending might very well end up on this side of the aisle. Certainly the unintended consequences of 1974 are exactly what we are dealing with here today. My focus, however, is on the fact of responsibility. It is appropriate for voters to hold candidates responsible for the ideas that they communicate. It is reasonably appropriate for them to hold political parties responsible. But they cannot hold candidates responsible for a form of communication over which the candidates have absolutely no control. So negative campaigning, it seems to me, will increase rather than decrease with the passage of this bill. Irresponsible charges, unprovable charges, false charges will increase rather than decrease if we should pass this proposal. But the fundamental point is the amount of money in the political system will not decrease at all because those who feel vitally affected by what happens in politically elected bodies will find a way to spend that money, will be protected by the Constitution in their spending of that money, and will just do it in less responsible channels than they do today. That, it seems to me, is the policy argument against this proposal. In fact, if we want to make campaigns more candidate oriented and more issue oriented, we would at the very least raise the limitation on contributions to candidates to the level at which they were in 1974 by reflecting the ravages of inflation since then, and we would encourage contributions to political parties. What we would do--I am certain that the Senator from Kentucky agrees with me--is we would see to it the source of those funds is reported contemporaneously and prominently. The immense amount of time and effort and money that is being spent on investigating the Democratic National Committee and the Presidential election of 1996 would, I am certain, have been absolutely unnecessary had all of these contributions and all of their sources and all of these activities been public knowledge at the time at which they were given, the time at which those actions were taken. Why? Because it would not have happened that way.

Mr. GORTON. The answer to that from my perspective, as the perspective from the Senator from Kentucky is, of course, it is not. Of course, it is highly undesirable. It will atomize the political system. It will make Members far more free than they have been even in the past from any loyalty as a party, and thus reduce the ability of a Congress or of any other body to reach coherent decisions, but, more importantly than that, will reduce the ability to communicate a coherent set of political ideas to the people of the United States in connection with election campaigns. That is why it is so tremendously undesirable. Even if I am correct that it is constitutional to create such limits, they certainly violate the spirit of the first amendment which is designed to create a field in which the widest range of political ideas can be communicated in the broadest possible fashion. However, when we get to the third way in which money can be spent to communicate political ideas, I find myself in total agreement with the Senator from Kentucky. That has to do with direct expenditures on advocating the election or the defeat of candidates by persons unconnected with political parties. Before I get to that, we started with the fact that money that is given to and spent by candidates certainly carries with it a huge responsibility. Candidates cannot avoid responsibility for what their political ideas are that they express with their moneys they spend on their own campaigns. They get a degree of protection from their own political party when it spends money. They can say ``No, that really wasn't quite right. I didn't really believe in that attack on my opponent.'' It is hard to shed that responsibility completely because each candidate has chosen a political party, and its political party's name appears beside his or her name on the ballot. But the responsibility of a candidate is only indirect. In other words, the party's advertisements, the party's communications bluntly can be less responsible than the candidate's own expressions. The candidate has a certain degree of invulnerability from any such irresponsibility. But, by definition, when another group, or another wealthy individual, decides that the election, or the defeat of a candidate, is important enough to want to spend a significant amount of money on it and engages in that activity without consulting the candidate or the party, that communication beyond the slightest shadow of a doubt is protected by the first amendment--beyond the slightest shadow of a doubt. This complex and Byzantine form of regulation in the present law, which would be made more complex and more Byzantine by the passage of McCain-Feingold, raises this question of whether or not expenditures are actually independent, and creates a bonanza for lawyers and for accusations. But it doesn't need to exist in an intelligent system. But clearly when those expenditures are independent, they can advocate the election, or the defeat of a candidate, with entire impunity. They are protected by the first amendment. They ought to be protected by the first amendment. They will continue to be protected until we repeal, or modify, that first amendment, and decide that we ought to choke off free speech on political ideas. Well, obviously, the candidate who benefits from these independent expenditures has absolutely no responsibility for them whatsoever. However scurrilous or inaccurate they may be, they are not the candidate's fault. They are independent of the candidate. The organization of the individual who was presenting them or paying for them and does not appear on the ballot can't effectively be held responsible in a political sense for that form of communication. So, first, in 1974 we forced expenditures from the most responsible use to a less responsible use. Now, if we pass McCain-Feingold, we force them into an entirely irresponsible channel, even when we are dealing directly with the election or the defeat of candidates. But, Mr. President, the real point is we cannot stop the money from being spent. The decisions made by the Congress are vitally important to people's lives, and the people whose lives are affected by them are going to try to affect elections for membership in this body and in the House of Representatives. Obviously, they have to have that right in a free society. Well, then we move on to the fourth method of communicating ideas. That goes to the benefit of this debate under the title of ``issue advocacy.'' Again, any individual, any group, has a total complete protected right to communicate ideas or views about political ideas. Again, these reforms create this totally artificial lawyer-enriching distinction between an independent expenditure on behalf of a candidate and issue advocacy, an issue different but a distinction in the real world, but one that suddenly becomes very important when you want to get Government involved in all of these ideas. Were the advertisements by the AFL-CIO all through the last election campaign that said, ``Tell Congressman X to stop destroying Medicare'' issue advocacy? That is what the AFL-CIO claims. In fact, of course, they were designed to defeat candidate X in the next election. Mr. President, let us be absolutely certain that the AFL-CIO and every other organization has a perfectly totally protected constitutional right to engage in that activity, and to engage in independent expenditures directly at the same time. That is a separate question as to whether or not we ought to require a labor union, or any other voluntary organization organized primarily for one purpose, to not spend the money of its members on an entirely different political purpose without their consent. Clearly, we can require that consent in any reasonable way which we propose, but once that consent is granted, the constitutional right is absolute. Then, fifth, Mr. President--and the Senator from Kentucky outlined this question I thought with great simplicity and clarity and elegance a couple of hours ago--fifth, of course, we have the newspapers and the television and radio stations, the forms of mass communication in this society which enter into this struggle gleefully, at great length, continuously and totally protected by the first amendment. We on this side of the aisle can complain about the fact that most of the major metropolitan newspapers, editorial writers and their reporters are biased to the left, but none of us for a moment claim the right to control their speech or to say that they can't write editorials or that we have the right to say their news stories are biased and keep them out of the newspapers or out of television stations. I must say, and I trust that the Senator from Kentucky will agree with me, when we use this pejorative ``special interest,'' these newspaper editorial writers do have a special interest in restricting all other forms of free speech about politics so that they can occupy the field alone or almost alone and greatly increase their influence over the actions of the voting public.

Mr. GORTON

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

Mr. GORTON

Mr. GORTON. Mr. President, I am pleased to join with my distinguished colleagues, Senator McCain, Senator Hollings, and Senator Ford, to introduce the aviation insurance reauthorization Act of 1997. The bill would reauthorize the aviation insurance program for five years. The program is set to expire at the end of this fiscal year. The aviation insurance program, commonly known as war-risk insurance, has been in place since 1951. It insures air carriers against losses resulting from war, terrorism, or other hostile acts, when commercial insurance is canceled, or is unavailable at reasonable rates. For an air carrier to qualify for the program, the President must determine that a flight is essential to the foreign policy interests of the United States. The FAA can issue both premium and nonpremium insurance under the program. Premium insurance is issued to air carriers flying commercial operations in foreign air commerce, or between two or more points outside the United States. Nonpremium insurance is issued to air carriers flying missions for Federal agencies, such as the Departments of Defense and State, that have indemnification agreements with the Department of Transportation. Nonpremium insurance accounts for 99 percent of the aviation insurance program. Both the premium and nonpremium insurance provides hull coverage for the loss of, or damage to aircraft. The insurance also provides liability coverage for death or bodily injury, and damage to property, baggage and personal effects. Program coverage is limited to the amount of insurance that an air carrier's commercial policy would have provided. The program is self-financed through the aviation insurance revolving fund. Reauthorization of the aviation insurance program is noncontroversial. The program enjoys the support of all of its participants. I want to note, however, that my bill adds a new element to the program. It authorizes the Federal Aviation Administration [FAA] to borrow money from the Federal treasury to pay a claim, in the event that the revolving fund is not sufficient to cover a large claim, or simultaneous claims. I believe that this provision is necessary to ensure that timely payments for hull losses can be made to air carriers. These same carriers typically lease aircraft under agreements that stipulate that the carriers must repair or replace damaged aircraft within 30 days of the incident. Although the Congressional Budget Office claims that this provision does not have a significant budget impact, I understand that the Office of Management and Budget [OMB] may disagree. The FAA and the OMB are working with the aviation leadership on the Commerce Committee to resolve this issue. I pledge my full cooperation, and I hope and expect that we can resolve this issue before the Commerce Committee reports out the legislation. The Commerce Committee plans to report out the bill as early as next week. The House plans to approve companion legislation next week, as well. I urge my colleagues to work with me to reauthorize the aviation insurance program before it expires at the end of the fiscal year.

Mr. GORTON

Mr. GORTON. A jury in New Orleans the other week issued a clarion call for legal reform. A monstrous judgment against CSX Transportation and four other companies illustrates once again the arbitrary and perverse nature of our current tort system. Mr. President, I rise today to bring to my colleagues' attention a $2.5 billion punitive damage award against CSX Transportation stemming from a 1987 chemical-car fire in the New Orleans neighborhood of Gentilly. Even in the context of our current broken legal system, this one is shocking. The jury awarded $2.5 billion, out of a total punitive damage award of $3.4 billion, against CSXT, Mr. President, despite the fact that Federal experts had determined that CSX was not at fault; despite the fact that the jury did not allocate any significant portion of the compensatory damages to CSXT; despite the fact that actual compensatory damages awarded to date in the case are only $2 million; and despite the fact that the accident resulted in no deaths, no serious injuries, and no significant property damage. Comparisons made in a New Orleans Times Picayune article put the total punitive damage award into perspective, warped as it is. Consider that the punitive damage award in this case is seven times the amount Union Carbide paid to settle a claim relating to a chemical leak in Bhopal, India, that killed 4,000 people and injured 300,000. Despite only minor property damage, this award is two-thirds of the punitive damage award against Exxon for the environmentally devastating spill that occurred in Alaska in 1989. Let me set out the facts of the case as I understand them from the press accounts. On September 9, 1987, a railroad tank car containing butadiene, a volatile compound used in making synthetic rubber, was located in a rail yard in New Orleans on tracks that belonged to CSXT. Due to a faulty gasket, the contents of the car leaked and the car caught fire. Local officials determined that the best approach was to let the fire burn itself out. To avoid harm to nearby residents, authorities ordered the evacuation of those living near the yard. Many people were inconvenienced, but although there are 8,000 people in the plaintiff class, only 2,300 people claim to have been located within the evacuation zone, and contemporary estimates of how many people were actually evacuated put the number at about 1,000. One year after the accident, the National Transportation Safety Board, the Federal agency that investigates transportation accidents, determined that a misaligned gasket and other factors, not involving CSXT, had caused the accident. In fact, other than providing the track on which the train car was placed, CSXT had no connection to the car. CSXT did not own or repair the tank car, and it did not transport the car. Significantly, even though the NTSB determined that CSTX had not caused the accident, the jury held CSXT 15 percent responsible for the $2 million on compensatory damages that have been awarded to 20 plaintiffs at this time. The remaining plaintiffs will have to prove their damages in separate proceedings. Though it seems unfair that CSXT would be responsible for any compensatory damages if it was not at fault, it is unspeakably outrageous that CSXT would be assessed over 75 percent of the punitive damages, and only 15 percent of the compensatory damages. How can it be that a Federal agency determines that a company has no responsibility for causing an accident and yet this huge verdict is awarded? The answer, unfortunately, is that our tort system is broken. The case in New Orleans is the latest, though perhaps most egregious, example of why we have to reform our civil justice system, to place some reasonable limit on punitive damage awards, to modify the laws regarding joint and several liability, and to provide disincentives for lawyers to go after the ``deep pockets,'' simply because they're there. CSXT is a big corporation, but that should not be reason to impose huge penalties on it, penalties that could affect its thousands of employees, thousands of middle-class stockholders who own shares in the company through their pension plans, and everyone who uses its vital transportation facilities. Until we undertake meaningful legal reform, we will continue to disadvantage businesses and consumers, stunt career opportunities, breed contempt for the law, and do injustice.

Mr. GORTON

Mr. GORTON. Mr. President, I am here to outline certain changes to my amendment that was accepted as part of the Labor, Health and Human Services, Education Appropriations Act as passed by the Senate. These changes will be submitted to the House-Senate conference committee. My amendment, No. 1122, would block grant funds from several K-12 education programs in the Department of Education and send those funds directly to school districts. These changes have been incorporated into a new draft of the amendment. The genesis of the changes is a series of discussions with my colleagues in the Senate and other interested parties. While these changes correct minor drafting errors, they do so without changing the overall philosophy of the amendment. The most significant of the changes exclude from the block grant entirely any funds from the Adult Education, Vocational Education, and Rehabilitation Services programs, programs not primarily directed at K-12 education. Other programs excluded from the block grant are: Indian Education, the Inexpensive Book Distribution Program, Arts In Education, Star Schools Program, and Technology Innovation Challenge grants. Finally, the distribution of bilingual education funds is changed. These funds will be sent to school districts in the same proportion as the funds were distributed in fiscal year 1997, much like title I funds are distributed in the amendment. For example, if a school district were eligible for .25 percent of all bilingual education funds in fiscal year 1997, it will be eligible for the same share in fiscal year 1998. Mr. President, these changes correct minor drafting errors and incorporate the suggestions of several supporters for minor improvements. These changes, however, do not affect the amendment's overall philosophy, which is to restore the decisionmaking authority for the education of our children to where it belongs; the hands of parents, teachers, principals, superintendents, and school board members. I look forward to discussing this issue further with my colleagues during conference committee meetings.

Mr. GORTON

Mr. GORTON. Mr. President, on Monday, millions of American children will board schoolbuses all across the country. But when they get off those buses, will they be walking into schools that challenge them to learn and grow, or into empty shells of missed opportunities and lost hopes? Are we doing the best possible job of educating our children, or can we do better? For decades, the conventional wisdom in our Nation's Capital has been that Washington, DC, knows what's best for our schools. I disagree. I think teachers, parents, principals, and school boards know what's best for our children. Earlier this month, the U.S. Senate passed school reform to restore the traditional role that parents and teachers play in education. The reform adopted by the Senate sends Federal education funds for kindergarten through high school directly to school districts. Bypassing Federal and State bureaucracies, which siphon millions of dollars and attach regulatory strings, means more authority and more money for local educators. All of us want the best education possible for our kids. We all want them to succeed. A good education unlocks the future, provides a lifetime key to open doors of opportunity and helps our children reach their dreams. We can provide that opportunity to our children by restoring the role that parents, teachers, and principals need to play in education. Unfortunately, Washington, DC, takes a different view--the President and Democrats in Congress have denounced this proposal. Education should not be a partisan issue, but when this school reform measure was approved by the Senate, not a single Democrat voted for it. And the President has said he will veto this reform when it comes to his desk. Apparently, he prefers a system that has Washington, DC, deciding what's best for schoolchildren in Chehalis, WA; New York City, and every place in between. By taking this position, I think the President is telling parents and teachers: ``I don't trust you.'' While I believe the President has taken the wrong position, I know that he and I share the same goal--we both want what is best for our children. The debate is not over who cares more for our children's future--the debate is about how to achieve our shared goal of doing the best we can for children. There is nothing more important than our children's future. There are few issues as troubling as the state of our educational system. The next century will demand a lot--advanced technology, the global marketplace, an ever-changing American society--and I am concerned that our children aren't going to be completely prepared for their upcoming challenges. There was a time in America when parents and teachers had more say in their children's education. Over time, Washington, DC, gradually took responsibility for education from our home towns, and put it in the hands of Federal bureaucrats. What have we gotten for allowing Washington, DC, to run our local schools? Since 1960, education spending has risen 200 percent, but SAT scores are down. Teachers used to make up two-thirds of the full-time school staff--now it is barely half. And schools are more dangerous than ever. The Washington, DC-knows best approach to education has also taken us away from the ``back to basics'' approach long-favored by parents. Skim through your daughter's American history book. Does it instill her with hope? Is it the story of how incredibly diverse people came from all over the globe to pursue boundless opportunities? Or is it a visionless narrative of American failures and shortcomings? Those who oppose this measure argue that it's somehow dangerous to entrust parents and teachers with more control over our children's education. Those in Washington, DC guard their power jealously, and they won't give it up easily. The President says this proposal will reduce funding for schools, and eliminates the Department of Education--it will not. Under this proposal, local schools get more money, and the Department of Education plays a more modest role. While fewer bureaucrats and a weakened Department of Education are valuable byproducts of this effort, they are not my primary concern-- giving parents and teachers more control over their children's education is my single most important goal. One Senator who opposes school reform said he actually thought that parents would build more swimming pools, instead of buying more books, if Washington, DC stops telling our schools how to educate our children. I disagree. It's offensive to suggest that parents and teachers don't have the children's best interests in mind. I believe that with the additional authority and funding schools would receive from this reform, our teachers, parents, principals, and school boards will be inspired to do even more--not to build swimming pools--they will be inspired to make sure that every child receives the best education possible. It comes down to this--will local schools be improved through more rules from Washington, DC, or will they be improved if we restore the authority for education decisions that parents, teachers, and principals once had? On this issue, I believe the answers are best left to our parents, teachers, and communities, not Washington, DC.