Judd Gregg

Mr. GREGG

Mr. GREGG. I know that the Senator from Massachusetts and the Senator from North Carolina said the employer is not subject to liability under this bill. The Senator cited section 5 on page 144, subparagraph (A). The Senator didn't cite subparagraph (B), which says, notwithstanding subparagraph (A), the cause of action may arise against an employer, or other plan sponsor--it goes down the list--as directed participation in the employer's plan, and the decisions of the plan under section 102. So, very clearly, an employer is subject to liability under that section, and that ``directed participation'' is an extremely ambiguous phrase, I believe. I would be happy to discuss that. Then, if we go to page 141, where a new Federal cause of action against employers is created, subsection (ii) on that page says, ``otherwise fails to exercise ordinary care in the performance of a duty under the terms and conditions of the plan with respect to a participant'' in the plan. That action creates a new cause of action, which is a new cause of action against the plan's sponsor, and, by the terms of ERISA, section 3 definition, plan sponsor is defined as--lo and behold--the employer. I believe it is very clear under this bill that employers are subject to the right to be sued. They are subject to the right to be sued for what I expect are going to be multiple opportunities for a creative attorney. In fact, the Congressional Budget Office has basically rated this as a lawsuit against employers and has in fact rated the costs in this bill, which is significant and will lead to employers giving up their insurance. I would be interested in the Senator's definition and explanation of why, when the bill says in part (B) on page 144 that cause of action may arise against an employer or other plan sponsor, the language means something other than cause of action arising against the employer or other plan sponsor.

Mr. GREGG. Mr. President, will the Senator yield?

Mr. GREGG

Mr. GREGG. If the Senator will suspend, on behalf of Senator Warner, I ask unanimous consent to withdraw his previously submitted amendment No. 792.

Mr. GREGG. We are about to go to final passage. I wanted to thank staff on both sides. This bill has been on the floor for 7 weeks. Their tireless efforts, literally hours, days, nights, and weekends, on behalf of moving this bill along have been extraordinary. On my staff, of course, Denzel McGuire led the effort and did an exceptional job. Jamie Burnett, Rebecca Liston and other folks, so many it is hard to mention, as well as John Mashburn, Andrea Becker, Holly Kuzmich, and Raissa Geary on our side have all worked extraordinary hours to make this work. We also thank the professional staff of Senator Kennedy, led by Danica and other members of their staff.

Mr. GREGG. I ask unanimous consent that the quorum call be rescinded.

Mr. GREGG. I suggest the absence of a quorum.

Mr. GREGG. I ask for the yeas and nays.

Mr. GREGG. I yield such time as I may have under this amendment to the Senator from Alabama.

Mr. GREGG. Will the Senator yield?

Mr. GREGG

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

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

Mr. GREGG. I move to lay that motion on the table. The motion to lay on the table was agreed to.

Mr. GREGG. I yield such time as he may consume to the Senator from New Mexico.

Mr. GREGG. I yield back the time and ask for the yeas and nays on the Domenici amendment.

Mr. GREGG. The Senator from New Mexico has yielded his time to me, so I claim the Senator's time.

Mr. GREGG. Mr. President, I appreciate the energy of the Senator from New York, but I cannot agree with his position. The fact is, we finally have a President who is focused on education, who is focused on the fact that we, as a nation, and as a federal government, have totally failed in our responsibility to low-income children. We have spent over $120 billion of taxpayers' money, and we have still left the low-income child behind in America. We finally have a President who has said: No longer are we going to tolerate this. We are not going to tolerate taking taxpayers' money and allegedly using it to benefit the low-income child, and finding out that generation after generation of low-income children have not been able to realize the American dream because they have not been able to get an education. We have a President who has finally stood up for the low-income child and his or her right to receive a decent education in our country. We brought a bill to this Chamber. It isn't exactly what I wanted, I know it isn't exactly what the other side wanted, but it has, as its essence, the elements that will bring about some significant changes in the way we deliver education in this country, especially on behalf of low-income children. And, more importantly--or equally as important-- the President has said: I am going to support that policy with dollars. He has put on the table more dollars than the prior President ever put on the table, by a factor, in the area of title I, of about, by my calculations, 10. In the area of special ed, he has proposed the single largest increase ever proposed by a President. The simple fact is, this President has backed up his commitment to education with a commitment of dollars. What we have seen on the floor for the last 12 days is a lot of Members who want to put out a press release saying they have increased it even more. And so they know when we are using authorization money, that we are using funny money to some degree. The real money comes out of the Appropriations Committee. We know that when the Appropriations Committee meets, it is going to make its decisions no matter what the authorization committee says because that is the way it has worked around here since time immemorial, or at least in this century. As a practical matter, what we can do that is constructive is pass a good bill that has good policy and also make it clear to the Appropriations Committee that we expect them to fund education to the fullest extent possible, which is what the Domenici amendment requests and what is reasonable. We have somebody backing us up on this, and that is the President, who has already said that the number proposed in the budget is something he is going to exceed, again by a factor of potentially 10, or somewhere in that range, in the area of title I.

Mr. GREGG. Is that all the time remaining on either side?

Mr. GREGG. I say to the Senator from New York, that seems reasonable. I will speak for a few minutes and reserve time. I will reserve 10 minutes to balance out with that side. We are into a numbers game obviously. I am not sure that will have a positive impact on how this bill is perceived because the essence of this bill is the policy. Authorizing bills are about policy. I think people need to understand that. Authorizing committees tend to put numbers on bills but appropriating committees spend the money. As a member of the Appropriations Committee, I can state that as much as we admire the authorizing committees, sometimes we act independently of the authorizing committee. The key to an authorizing bill is the policy that is laid down relative to educational reform. In this bill, there is a lot of very interesting, very significant policy, the purpose of which is to depart from a course that has regrettably produced year after year of failure in educating our low- income children, and move on a course which will hopefully give our children from low-income families a better opportunity to learn and be competitive with their peers, and therefore participate in America and the prosperity of our Nation. The basic themes of the policy in this bill, as I have outlined a number of times, is that it is child centered. It involves giving more flexibility to local communities and the teachers and the parents and the principals. In exchange for that flexibility, it builds in a desire to see much greater academic achievement on the part of low-income kids who today, regrettably, read at two or three grade levels less than their peers and graduate at a 50-percent rate from high school. It has significant accountability standards to make sure those academic achievements are accomplished. The policy in this bill is strong. It is unique in the sense of the tradition of Federal involvement in education in that it takes a new road to a large degree. The authorizing levels in this bill, however, are really not that relevant to what is going to happen, in my humble opinion. The reason I say that is because it has become almost a form of gamesmanship on this floor to constantly throw more money into the number at the authorizing level. All you have to do is look at what we have done in the last few weeks to recognize that. Over the last few weeks we have added into this budget, into this bill, literally huge increases in the authorized level. We have increased the authorization level by 47 percent in the mandatory area, adding $112 billion. Over the term of the bill, which would be 7 years, we have added $211 billion, for a 101-percent increase. In the year 2000, we have increased the authorizing level by $11 billion, bringing the total to $38.8 billion, or a 120-percent increase. That has all been done in about a week's time, maybe a week and a half, as we picked up speed over the last few days. We need to put that in context. This bill has been on this floor before. We have heard from the other side that we have to authorize and then we have to appropriate to the highest level possible to achieve the most significant results because money translates into achievement. Of course we know money doesn't translate into achievement. But even if we were to accept that argument, and we were to go back a few years-- for example, the last time this bill was authorized, back in 1994- 1995--we would find the enthusiasm for bumping up the authorizations when we had a Democratic President and a Democratic Congress was not quite so high. It could have been at that time they were dealing with reality versus politics. At that time, when the authorizing bill came through, the ESEA authorizing bill came through, the actual increase in educational spending that resulted from it was .012 percent--.012 percent. In fact, the actual educational funding was cut in that year by $484 million. The increase in title I specifically was less than 6 percent in that year. You might say there was a deficit then so Congress had to be much more restrained in its activity. But I would point out that at that time the Senator from Massachusetts represented that the bill as it was passed and authorized--remember the authorization levels were essentially no increase at all--he said it was the most important reauthorization of ESEA since that landmark act was passed in 1965. So, obviously, at that time at least the chairman of the committee thought it achieved the goals it was supposed to have achieved. In fact, he went on to hail its academic accountability standards. It would achieve those levels at the levels it was authorized or else he would not have said it was such a great bill. I do not know what has changed in 6 years, other than we have a different President and a different Congress. Yes, we do have a surplus. But as a practical matter, if the bill was so good and strong when there was virtually no authorization increase, why today do we have to have an authorization increase which has, just in 7 days, jumped so radically? Remember when this bill came out of committee the authorization increases in it were already exceeding 100 percent of what the underlying authorized levels were when we started out. So we are talking about 100 percent on top of 100 percent. I also note if spending on education has to be so aggressively pursued in order to accomplish the goals of better education, somebody must not have informed the prior President of that. The prior President's increases in title I spending, President Clinton's increases, were rather small--not only during the period that we had a deficit but during the period that we had the surplus, from 1998-1999. In the period of surplus, the increased proposal was $36 million; in 1999 his increased proposal was $219 million; in the year 2000-2001 he proposed a $401 million increase in title I funding. In the area of special education, he essentially proposed no increase in 1998, 1999, 1999-2000, and then in 2000-2001 he proposed an increase. As a practical matter, President Clinton, who I believe was committed to education--in fact, when I was Governor and he was Governor we held an education conference down in Charlottesville, as I recall--was one of the leaders on the issue. I state he certainly maintained that view throughout his Presidency. He thought he could accomplish his goals on education during a period of surplus with the dollars he outlined. What is President Bush suggesting? I think that brings us sort of into a complete circle. President Bush has suggested a very significant increase in funding. Remember, President Clinton's request was $401 million. President Bush's funding request in this area is $500 million. That was his request. In negotiations leading up to bringing this bill to the floor, the President went well beyond that request and, in fact, has offered an increase in title I funding which represents a 50-percent increase in funding in 1 year. In the special education area, President Bush has proposed the largest single increase ever proposed by a President in special education funding. President Bush has proposed a 50-percent increase, or offered a 50-percent increase in title 1 funding as part of the negotiations leading up to this bill. He has proposed in his budget a $500 million increase, which is $100 million more than President Clinton proposed, and he has proposed the single largest increase in special education funding ever proposed by a President. It is reasonably disingenuous to take the position that this President isn't committed to education on the policy side, and also on the spending side, to support that policy, because he has walked the walk and made the proposals to accomplish it, which brings us to the question of what is the purpose of this sense of the Senate amendment. It is to ask the appropriating committee to fully fund authorizations which have come at us on this floor for the last 5 or 7 or 8 days--it has in actuality been 14 days since we really went on the bill in an intense way--authorizations which, as I mentioned earlier, represent in those few days an over 120-percent increase in this year's budget, a 100-percent increase in the 7-year budget representing $211 billion, and a 47-percent increase in special education funding. I think you are going to have trouble with the appropriating committee to accomplish that. We have to be realistic. I suppose when the defense authorizers come to the floor they might offer the same type of SOS, and they might say we want defense authorizations fully appropriated also. They would probably have a pretty good case for that because the obligation of the National Government is national defense. Then I suspect when the health committee, which I happen to be a member of, and which this committee comes out of, comes forward with the authorization levels for NIH, for which we have significantly increased the appropriations, or for some other health activity which is very important, such as prescription drugs, or whatever the item might be, we are going to ask for full appropriations their, too. The list goes on and on. The obligations of the Federal Government are significant. But when you increase the authorizations on the floor of the Senate by 120 percent in 7 days on a bill that came out which had almost a 100-percent increase in it to begin with, and you increase the authorization by $200 billion on a bill which came out with already $235 billion in it when it hit the floor, which was a significant increase, a dramatic increase over present law, I think you are making a statement: Yes; that you want a commitment to education, but I think you are also probably acknowledging realistically that you are never going to hit those goals. It is just not reasonable to expect that the appropriations committee is going to have that type of change sitting in its pocket to move into this area. But when the President of the United States comes forward and says he is committed to a 50-percent increase in funding for title I, that is pretty significant. When the President of the United States comes forward and offers the biggest increase in history that a President has ever asked in special education, I think the Appropriations Committee will take that position. In the end, I believe these accounts will receive the very significant dramatic increases that they deserve. In fact, it is very obvious from the President's proposal that the education accounts are going to receive the largest rate increase ever by a factor probably of 100 percent or maybe more--200 or 300 percent--of any accounts in the Federal Government. The only agency that will probably be able to compete and the only area where competition will be even close will be NIH where we are committed to doubling funding over a period of time. But I don't think even the NIH increases as a percentage are going to be anywhere near the percentage of increases we are going to see coming as a result of this President's commitment to education. Once again, I suspect that this amendment, although well-intentioned, is going a bit beyond what reality is as far as the Congress functions because I think we all understand that the appropriating committees do not necessarily listen to authorizing committees when it comes to money. Authorizing committees define policy. That is our primary responsibility. We have done a good job of it in this bill. Because of the President's commitment in this area, I am pretty confident that the appropriating committee will make a dramatic increase in the spending commitment to education which will allow us to accomplish policies that we hopefully are going to pass with this bill. I reserve the balance of my time. I yield the floor.

Mr. GREGG. Mr. President, I join with my colleagues, and I especially thank the Senator from Arkansas and the Senator from Alabama for bringing this amendment forward. I think it is absolutely essential that we, as the Senate, put ourselves unalterably on the record, in a clear manner, that we believe the armed services have every right, and in fact colleges have an obligation to allow them, to recruit on their campuses, whether they be law schools, whether they be graduate schools, or whether they be undergraduate schools. The attempt to exclude the military services from different colleges is an example of political correctness run to its extreme. As the branch of government which funds the armed services and which has a critical obligation of making sure the armed services is filled with talented citizens, it is our obligation to recruit aggressively. The natural place to recruit is in the higher system of education and in our high schools. I congratulate the Senator. It is an excellent amendment. I look forward to its passage.

Mr. GREGG. Mr. President, we reserve our time. I ask unanimous consent that our time be reserved and it be set aside until after the Nelson amendment has been completed.

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

Mr. GREGG. Madam President, I have listened with interest and have been impressed by the enthusiasm, energy, and commitment of the Senator from Connecticut to the 21st century program, which is something I strongly support myself. In fact, during my prior life when I was chairman of the Appropriations Committee on Commerce, State, Justice and working with Senator Hollings, we essentially funded what amounted to the afterschool program initiatives in different areas, especially in the Boys and Girls Clubs and programs with Big Brothers and Big Sisters. I was able to put into this bill language which I am very excited about because I think it will significantly improve the 21st century program, which allows community-based organizations to participate in the program for the first time, instead of having programs which are totally managed by the local educational organization. The schools basically weren't working all that well, quite honestly, in many areas because basically at the end of the schoolday, teachers were tired, and developing programs that kept teachers around the school building after the schoolday was hard to do, and understandably so. Now we are going to infuse the afterschool programs with community- based organizations. Some of them can be faith-based organizations, which is very exciting. You will get, I am sure, Boys and Girls Clubs, and again Big Brothers and Big Sisters, that will actually physically be on site for the afterschool programs. There is a major educational component in that amendment which was adopted in committee. I think you will also get groups such as the CYO that might be involved in things like this, or other faith-based groups that basically won't be in the school teaching religious values--that would be inappropriate--but will be in the school teaching life-needed skills or organizing sports programs perhaps in the school period. After-the-schoolday is something I have worked very hard on as a Member of the Senate on the committee and admire and appreciate the commitment of the Senator from Connecticut to the after-the-schoolday programs. We all understand that the period from 3 to 6 is a period where youth are at risk, unfortunately, in many of our communities. And for them to have some place constructive to go is very important. This amendment doesn't really address that issue because, in my humble opinion, this amendment goes to the question of management. Who makes the decision as to how the after-the-schoolday is controlled, whether it is going to be a categorical program coming from the Federal Government that says you must have an afterschool program or the alternative, which I think makes much more sense--whether a State or a community decides to take all the educational formula funding programs, merge them together, and set them up as a program, the purpose of which is to make sure the children participating in those programs actually exceed the academic success of the children who are not in those programs. As a result, we get a better return for the dollars spent in these various areas. We get better students who are better prepared for life. We get students who are coming through the school year with a better academic achievement level. That should be, of course, our goal in this bill. It is the goal of the Straight A's Program. The question as to how the day is structured would be left at the local community level, or the State level, and wouldn't be directed from within the Federal Government. This is the difference. It is not a question of whether there will be an afterschool program. It is a question of who will make the decision as to how funds are allocated within the formula grant program for designing the afterschool program and the schoolday program. To step back, I think it is important to understand the basic concept of Straight A's. The concept of Straight A's is that we give the local school districts and the States, or those who wish to apply anyway, the opportunity--it is only a limited number--to set up a program where they actually commit that the low-income child will do better--this is the important point--than the other children in the school district in academic achievement, and, therefore, getting prepared for life and being competitive in our society and having a chance to participate in the American dream. In exchange for making that commitment to the kids who are from low- income families to actually exceed the average yearly progress in the community generally for students, we will allow the local school districts and the States to design the program free of stress on the input side. The 21st century program, along with the other 16 formula programs that are put into this proposal for the development of Straight A's, are all strong, oriented programs. It has significant restrictions. They are very categorical and very directive. They are very top-down command and control programs. They all have specific purposes, but the fundamental goal of all of them is to get a child up to speed academically and at a level where they are actually going to be constructive and productive citizens in our society. We have said, with the Straight A's experiment--in a few States; in a very few States, potentially 7 States and 25 school districts--let's try an experiment. Let's say to the local communities, rather than having the top-down command and control, the traditional Federal control of strings-attached dollars, we will take all those dollars, put them in a basket and give them to the local communities, but the condition of you taking those dollars is that you are going to have to commit to prove that the children those dollars are directed towards are going to do better than the other children in the community. So it is not as if the States and the local school districts are getting some huge influx of dollars with no restrictions or no responsibilities. The responsibility is even greater, but it is at the end of the system versus at the beginning. Instead of saying how they will do it, we expect results; and then we are going to test them to make sure those results are actually being achieved. It is a very creative approach. It really is part of the essence of the underlying agreement and bill which we negotiated and which was the result of the impetus that came from the President. The President's concept on education is really pretty simple. It is that we should focus on the child, and that we should expect the child to obtain academic achievement, and that we should do that by giving flexibility to the local school districts; in exchange for the flexibility, we are going to have strict accountability to see that the children have attained academic achievement. So the concept is to create an initiative and demonstration programs which will, at least with these 16 categorical programs, put them in a basket and give those dollars to the States with great flexibility, or give those dollars to the communities with great flexibility, but in exchange expect academic achievement subject to strict accountability, focused on the child. This program, this Straight A's Program, meets all the conditions and all the ideas that have been put forward by the President as one of the key purposes of his educational initiatives. That is why there is such an intense discussion about it today. If you listen to the Senator from Connecticut, you obviously have to be drawn to his ability to present his case well, but the point is, if we go back to the approach offered by the Senator from Connecticut, then we will have fundamentally undermined what is one of the primary thrusts of the President's initiatives in trying to break out of this mold into which we have put education for the last 25 years, where for generation after generation we have seen low-income kids being left behind, which isn't acceptable. So the President has come up with this idea. Actually, it is an idea that was developed by the Senator from Washington, Mr. Gorton, a couple of years ago. The President adopted it. He has taken this idea and put it into his package. That is why it is so critical that this amendment be defeated. Because if it is adopted, it basically takes the heart out of the Straight A's Program and as a result undermines one of the key thrusts of the President's initiatives to try to bring low-income kids not only up to speed but, in this case, actually putting them ahead of their peers in education. I see the Senator from Nevada is trying to get my attention. Obviously, he wishes to make a point. I yield to the Senator.

Mr. GREGG. Two minutes on both sides.

Mr. GREGG. I yield 10 minutes to the Senator from Ohio.

Mr. GREGG

Mr. GREGG. Mr. President, I ask unanimous consent at this time the Santorum amendment, which I had sent to the desk, be reported and that it be considered as a first degree in a side-by-side status with the Hollings amendment which is now a first degree.