Orrin Hatch

Mr. HATCH

Mr. HATCH. Mr. President, I am pleased to announce that Chairman Hyde, Senator Leahy and I reached an agreement with the Department of Justice and Senators Sessions and Schumer yesterday on civil forfeiture reform legislation. This is an important issue, and I am proud to support this legislation. While civil forfeiture is a valuable law enforcement tool, it has become increasingly clear that some reform of civil forfeiture law is necessary given the numerous controversial seizures of property in the last decade. Federal civil forfeiture procedures, which are based largely on 19th century admiralty law, provide inadequate protections for private property. For example, under current Federal law, once the government seizes property, the burden of proof is on the property owner to prove that the property is not subject to forfeiture. After property is seized, the property owner must post a cost bond in order to contest the forfeiture. This bond requirement does not entitle the property owner to the return of the property, but merely allows the claimant to contest the forfeiture. If the property owner files a claim to the property, the government has up to five years to file a complaint for forfeiture. The legislation agreed to today increases protections for property owners, while respecting the interests of law enforcement. Among other provisions, the bill places the burden of proof in civil forfeiture cases on the government throughout the proceeding; places reasonable time limits on the government in civil forfeiture actions; awards attorney fees and costs to property owners who prevail against the government in civil forfeiture cases; authorizes the court to release property pending trial in appropriate circumstances; eliminates the cost bond; and provides a uniform innocent owner defense to all federal civil forfeitures affected by the bill. All of us here are committed to depriving criminals of the proceeds of crime. To further this goal, the bill increases the ability of the Justice Department to target criminal proceeds. The bill also extends criminal forfeiture authority to any Federal statute in which civil forfeiture authority exists in order to encourage the use of criminal forfeiture. In addition, the bill contains several mechanisms to deter and punish frivolous claims to seized property. Senator Sessions will describe these provisions in detail. A broad coalition of organizations support this bill, including the Chamber of Commerce, the American Bankers Association, the National Association of Homebuilders, the National Association of Relators, the Institute for Justice, Americans for Tax Reform, the National Rifle Association, the American Bar Association, and the Fraternal Order of Police. In addition, six former Attorneys General--William Barr, Richard Thornburg, Edwin Meese, Benjamin Civiletti, Griffin Bell, and Nicholas Katzenbach--have endorsed the bill. In closing, I would like to thank Senators Sessions and Schumer for their patience and cooperation. This agreement would not be possible without their hard work and dedication. Senator Sessions is to be especially commended. As a former United States Attorney and state Attorney General, he has more experience in civil forfeiture actions that any member of Congress. Senator Sessions has been an outstanding representative of the law enforcement community, and I am proud to have his support. Finally, I would like to thank House Judiciary Chairman Henry Hyde. No one has done more to advance the cause of civil forfeiture reform than Chairman Hyde. His 1995 book on civil forfeiture helped draw national attention to the need for reform. Last June, the House overwhelmingly passed the Hyde-Conyers civil forfeiture reform bill. This victory for forfeiture reform was due in large measure to Henry Hyde's stature and commitment. Thank you for your attention to this important reform legislation.

Mr. HATCH

Mr. HATCH. Mr. President, I rise to introduce a very significant bill--the Right to Keep and Bear Arms Protection and Privacy Act. There is a gun control frenzy taking place in Washington. There are about 1,070 bills either regulating or dealing with firearms pending in the House and Senate. These range from imposing new Federal regulatory standards on the manufacture of firearms to those requiring background checks at gun shows. And President Clinton has written a letter informing me that he will not sign long overdue, worthwhile and comprehensive youth violence legislation unless it includes most of this gun control agenda. I have become convinced that, for conscientious and reasonable defenders of the Second Amendment, it is not enough to simply oppose the gun control communities legislative agenda. Instead, we just redouble our efforts and set out to pass an affirmative legislative agenda which safeguards the right to keep and bear arms. Many gun control advocates claim that it is not their goal to interfere with the rights of law abiding gun owners. Many question sincerity. The bill I am introducing today will afford gun control advocates the opportunity to prove their critics wrong. This important bill is a first step in what I hope will become a bipartisan campaign to safeguard the rights of law abiding gun owners. Simply put, this plainly written bill would end burdensome and frivolous suits against law abiding firearm manufacturers, dealers, and owners, and preclude new ones, except in those cases where plaintiffs could show that the manufacturer or seller knew that the firearm would be used to commit a Federal or State crime. Thus, if it can be shown that manufacturers and sellers knew that a specific product would be used to a commit crime, then they will be subject to a civil action, if not a criminal prosecution. The provision also has the beneficial effect of striking a blow against ``legislation through litigation,'' which has enriched the trial lawyers while harming many of our nation's law abiding citizens and businesses. In addition, the bill also addresses the concerns of gun owners and advocates of the Second Amendment that the federal regulatory process will be misused by the government to abridge the constitutional right to keep and bear arms. The bill thus contains the following provisions: (1) a prohibition against the government charging a background check fee in connection with the transfer of a firearm; (2) a gun owner privacy protection component which requires immediate destruction of background check records for approved firearms buyers; and (3) establishes a civil remedy for private citizens aggrieved by government violations of the background check fee or gun owner privacy provisions. After all, if firearms manufacturers should be subjected to civil liability for illegal acts, why shouldn't the government be liable if a law abiding gun owner's privacy protections are violated? As a Senior proudly representing the people of Utah, I take seriously our oath of office to defend our Union's defining document--the Constitution of the United States. I truly concur with the remarks of the great British Prime Minister William Gladstone when he wrote in 1878 that the ``American Constitution is * * * the most wonderful work ever struck off at a given time by the brain and purpose of man.'' So too, I am an avid supporter of the Second Amendment. I believe, following the teachings of virtually all the Founders of our Republic, that the right of citizens to keep and bear arms has justly been considered as, in the words of the learned Justice Joseph Story, ``the palladium of the liberties of the republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them.'' It is astonishing to me that despite this pedigree of the Second Amendment, the enemies of the right to keep and bear arms, those advocates of state-ism and the politics of the left, have stooped to new lows in their crusade to diminish the God-given liberties of the American people. Seeing that radical gun control measures are unpopular and cannot pass Congress and state legislatures, those hostile to the Second Amendment have resorted to a new tactic in a not-so-veiled attempt to undermine the right to keep and bear arms. They have resorted to misusing our civil litigation system by bringing law suits against the source of guns: firearms manufacturers. They seek damages from firearms manufacturers for any harm caused by gun wielding criminals, even though the manufacturers are not responsible for the crimes. This violates traditional precepts of American law, which is based upon the free-will notion that only those responsible should be held liable. More specifically, over the past few years the firearms manufacturing industry has been subjected to these numerous ``junk'' lawsuits seeking damages or injunctive relief for harm caused by third-party criminal actors. Many of these cases have been brought by local government entities, including approximately thirty American cities. The Clinton Administration had announced that it would support these lawsuits and publicly threatened that the Department of Housing and Urban Development would commence an action against the firearms manufacturers. Generally, the plaintiffs in these cases argue that although the firearms are legal products and despite the criminal actions of third parties, manufacturers and sellers should be held liable because of the negligent fashion in which they designed, marketed, and sold their products. This novel theory stands traditional tort law on its head. These radical lawsuits are onerous and may well bankrupt many firearms manufacturers. If a maverick judge were to rule in favor of the plaintiffs in one of these cases, the industry could face financial ruin. Indeed, the Louisiana state judge handling the City of New Orleans lawsuit recently refused to dismiss that lawsuit notwithstanding the enactment of a state law that nullified the cause of action. The net result may very well be the disappearance of a lawful product--firearms--from interstate commerce. Let me mention a junk lawsuit brought by the City of Chicago against 12 suburban gun shops, 22 gun manufacturers, and four gun distributors. The Chicago Tribune, in an editorial dated November 14, 1998, agreed that the mayor's anger at the misuse of handguns was understandable, but called his lawsuit ``wrongheaded and ill-advised'' because ``it represents an abuse of the tort liability system and a dangerous extension of the tactic employed in similar lawsuits against the tobacco industry of using potentially bankrupting lawsuits to force makers of legal but unpopular products to quit.'' To one federal district court, such lawsuits are ``an obvious attempt unwise and unwarranted to ban or restrict handguns through courts and juries, despite the repeated refusals of state legislatures and Congress to pass strong, comprehensive gun-control measures.'' [Patterson v. Rohm Gessellschaft, 608 F. Supp. 1206, 1211 (N.D. Tex. 1985)]. Indeed, in characterizing the federal lawsuit against the tobacco producers and the HUD suit threatened against the firearms industries, and in complete candor, former Clinton Secretary of Labor Robert Reich noted that: * * * the biggest problem is that these lawsuits are end runs around the democratic process. We used to be a nation of laws, but this new strategy presents novel means of legislating--within settlement negotiations of large civil suits initiated by the executive branch. This is faux legislation that sacrifices democracy to the discretion of administrative officials operating in secrecy. [Robert Reich, ``Don't Democrats Believe in Democracy,'' The Wall Street Journal, Wednesday, January 12, 2000]. Furthermore, these junk lawsuits seek to reverse the well-established tort law principle that manufacturers are not responsible for the criminal misuse of their products. For instance, the Seventh Circuit Court of Appeals in Martin v. Harrington and Richardson, Inc., [743 F. 2d 1200, 1205 (7th Cir. 1984)], held that criminal misuse of a handgun breaks the causal connection between the manufacturers action and the injury ``because such criminal activity is not reasonably forseeable.'' A judge from a federal district court noted that ``under all ordinary and normal circumstances in the absence of any reason to expect the contrary, the actor may reasonably proceed with the assumption that others will obey the criminal law.'' [Bennett v. The Cincinnati Checker Cab, 353 F.Supp. 1206, 1209 (E.D. Kent, 1973)]. It is important to note that in his opinion the judge cited the noted tort expert, the late Professor Prosser, for the proposition that entities are not liable for criminal acts of others because such acts are generally unforeseeable and thereby cut the chain of proximate causation. [Prosser, Torts, 3d ed. at 176]. Moreover, these lawsuits suffer from the same defect that some, if not all, of the courts in the federal tobacco lawsuit suffer from: lack of standing. Government entities, absent specific statutory authority-- which is not present in either the federal tobacco case or these gun manufacturers cases--may not recoup medical and other expenses paid by government agencies from manufacturers of products alleged to cause the harm to ``third party'' beneficiaries of government programs. For instance let me mention two cases. Holmes v. Securities Investor Protection Corp., [503 U.S. 258, 268-69 (1992)] and Laborers Local 17 Health Benefit Fund v. Phillip Morris, [191 F. 3d 229 (2nd Cir. 1999)]. These cases stand for the proposition that a complaint is too ``remote'' when a plaintiff seeks to recover damage to a third party. Therefore, the plaintiff lacks standing to bring the suit. This is exactly what Connecticut Superior Court Judge Robert McWeeny held when he recently dismissed the City of Bridgport's ``junk lawsuit'' complaint for recoupment against Smith & Wesson. [Ganim v. Smith & Wesson, [No. CV 990253198S (Superior Ct. Conn., Dec. 10, 1999)]]. Our judiciary is being transformed by these misguided advocates of gun control from courts of justice into tribunals of the gun control lobby. That is why this legislation is needed. The Congress has both a duty to protect federal constitutional rights such as the right to keep and bear arms, as well as to step in and reform our tort system when it is being abused and the abuse has a significant impact on interstate commerce. Let me say a few words about last Friday's announcement of the agreement between Smith & Wesson and HUD. Basically, the agreement mandates that Smith & Wesson would provide trigger locks within 60 days and make their handguns child resistant within a year. Smith & Wesson also agreed to a ``code of conduct'' whereby the manufacturer would sell its products only to ``authorized dealers and distributors'' who agree to have their contract terminated if ``a disproportionate number'' of crimes were traced to the firearms they sell. Some sort of outside board will police the settlement. In return, the federal government agreed not to bring suit against the firearms manufacturer and eleven of the thirty cities and local governments dropped their actions. I believe that this so-called ``deal'' is the latest attempt by the Administration to play on the fear of the American people for pure political advantage. It makes the Administration look good. It makes it seem that the Administration is doing ``something'' about gun violence. But the record makes clear that the Administration has done little to enforce the federal laws on the books against gun wielding criminals. So this settlement masks the truth. The Administration has been inept in preventing gun violence. Let me say, first of all, that I don't believe that the Administration ever really intended to see its lawsuit against the firearms manufacturers to verdict. Indeed, in announcing the projected lawsuit against the gun manufacturers, HUD Secretary Andrew Cuomo admitted to the press that the whole effort was simply a bargaining ploy. So let's call it what the federal lawsuit really is: extortion. It is an attempt to bypass the legislative process and the Constitution to achieve a gun control agenda that the public's elected officials oppose. Sue the industry and have them cave in or face imminent financial ruin by having to defend an avalanche of legally dubious lawsuits and bad publicity. That's their game plan. Well, Smith & Wesson caved in. Why? Published reports have it that the owner of Smith & Wesson, Tompkins PLC of Great Britain, could not find a buyer for the $161 million company with lawsuits hanging over its head. And Tompkins understands that three California gun companies have gone out of business and that legal fees may very well bankrupt the industry. So Tompkins surrendered. And the reward for their surrender: it was announced on Saturday that HUD and the mayors of Atlanta, Detroit and Miami directed their law enforcement agencies to give preferences to Smith & Wesson when purchasing firearms. [``Smith & Wesson Earns Preference,'' @ Home Network, AP, March 18, 2000] This is outrageous. Not only does this deal undercut the Second Amendment, it undercuts the principle of competitive bidding. It creates an incentive that tax payers will be gouged. It punishes innocent firearms manufacturers. It weakens the rule of law because innocent manufacturers are denied their day in court. It weakens democracy because the heavy hand of big government is used as a tool of despotism. But it is the ``code of conduct'' term of the settlement that is the most peculiar. Again, this provision mandates that Smith & Wesson sell its products only to ``authorized dealers and distributors'' who agree to have their contracts terminated if ``a disproportionate number'' of crimes are traced to the firearms they sell. Well, how is this to be determined? What is a disproportionate number of crimes? And how will this be traced to the dealer or distributor? And what if the dealer or distributor were innocent of any wrongdoing? It seems to me that this settlement term suffers from the same defect as the underlying ``junk lawsuits''--innocent parties are being held liable for the criminal acts of third parties. The settlement represents the misuse of governmental power. It represents a weakening of our democracy and the rule of law. Mr. President, let me turn to the provisions of the bill that will (1) prevent illicit fees to be charged for background checks, and (2) that protect the privacy of gun owners from federal intrusion. The Brady Handgun Control Act of 1993 is silent on whether the government may charge a fee for the instant background check required under 18 U.S.C. Sec. 922(t). And let me add that it was never contemplated that the government would charge such a fee when Brady was debated and passed. Nonetheless, despite no explicit legal authority, the Administration has repeatedly attempted to require the payment of such a fee by licensed firearms dealers--which fees would almost surely be passed along to purchasers through higher prices. This would truly amount to ``taxation without representation.'' Section 5 of our bill adds Section 540C to Title 28. This new section prohibits the Administration from promulgating a tax without Congress' approval. It codifies a prohibition on charging or collecting ``any fee in connection with any background check required in connection with the transfer of a firearm.'' The prohibition would apply both to the Federal government and ``State or local officers or employees acting on behalf of the United States.'' This section thus prohibits an unauthorized fee that may be considered to be a ``tax'' on the exercise of a constitutional right-- in this case, to buy a firearm. Finally, under the Brady bill, if the instant background check reveals that the buyer is eligible to purchase the firearm, the government is required to ``destroy all records of the system with respect to the call and all records of the system relating to the person or the transfer.'' [18 U.S.C. Sec. 922(t)(2)(C)]. The Brady bill also prohibits the government from using the instant check system to establish a registry of firearms, firearms owners, or firearms transfers, except with respect to persons prohibited from receiving a firearm. [Pub. L. 103-159, Sec. 103(i)]. Despite the law, the Administration promulgated regulations in 1998 that allowed the FBI to retain for 6 months information pertinent to an approved firearms sale gathered as part of the instant check system. [See C.F.R. Sec. 25.9(b)(1)]. But, I concur with those Second Amendment advocates who view these record retention periods as veiled attempts by the government to establish a national firearms registry. Furthermore, the only way to ensure the privacy and security of the information in the instant check system is to immediately destroy the records of approved firearms transfers. To address these concerns and preempt the Administration's efforts to undermine the Brady bill's ban on a national firearms registry, my bill would establish a new statute, Section 931 to title 18, that would prohibit the use of the instant check system unless the system ``require[s] and result[s] in the immediate destruction of all information, in any form whatsoever or through any medium,'' about any person determined not to be prohibited from receiving a firearm. The destruction requirement, however, would not apply to (1) ``any unique identification number provided by the [instant check] system,'' or (2) ``the date on which that number is provided.'' These exceptions parallel the exceptions contained in the Brady bill [see 18 U.S.C. Sec. 922(t)(2)(C)] and allow the government to trace a firearm to a dealer, but not to a purchaser. In conclusion, Mr. President, I urge my colleagues to support this legislation to prevent extortion against the manufacturers of a lawful product, firearms. I urge my colleagues to support this legislation to prohibit a tax on the exercise of constitutional right--the Second Amendment's guarantee of the right of the American citizen to keep and bear arms. And I urge my colleagues to support this legislation that protects the privacy of citizens who lawfully and peaceably possess firearms from federal intrusion. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. HATCH

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

Mr. HATCH. I thank the Chair. (The remarks of Mr. Hatch pertaining to the introduction of S. 2270 are located in today's Record under ``Statements on Introduced Bills and Joint Resolutions.'')

Mr. HATCH

Mr. HATCH. Mr. President, I rise to introduce a very significant bill--the Right to Keep and Bear Arms Protection and Privacy Act. There is a gun control frenzy taking place in Washington. There are about 1,070 bills either regulating or dealing with firearms pending in the House and Senate. These range from imposing new Federal regulatory standards on the manufacture of firearms to those requiring background checks at gun shows. And President Clinton has written a letter informing me that he will not sign long overdue, worthwhile and comprehensive youth violence legislation unless it includes most of this gun control agenda. I have become convinced that, for conscientious and reasonable defenders of the Second Amendment, it is not enough to simply oppose the gun control communities legislative agenda. Instead, we just redouble our efforts and set out to pass an affirmative legislative agenda which safeguards the right to keep and bear arms. Many gun control advocates claim that it is not their goal to interfere with the rights of law abiding gun owners. Many question sincerity. The bill I am introducing today will afford gun control advocates the opportunity to prove their critics wrong. This important bill is a first step in what I hope will become a bipartisan campaign to safeguard the rights of law abiding gun owners. Simply put, this plainly written bill would end burdensome and frivolous suits against law abiding firearm manufacturers, dealers, and owners, and preclude new ones, except in those cases where plaintiffs could show that the manufacturer or seller knew that the firearm would be used to commit a Federal or State crime. Thus, if it can be shown that manufacturers and sellers knew that a specific product would be used to a commit crime, then they will be subject to a civil action, if not a criminal prosecution. The provision also has the beneficial effect of striking a blow against ``legislation through litigation,'' which has enriched the trial lawyers while harming many of our nation's law abiding citizens and businesses. In addition, the bill also addresses the concerns of gun owners and advocates of the Second Amendment that the federal regulatory process will be misused by the government to abridge the constitutional right to keep and bear arms. The bill thus contains the following provisions: (1) a prohibition against the government charging a background check fee in connection with the transfer of a firearm; (2) a gun owner privacy protection component which requires immediate destruction of background check records for approved firearms buyers; and (3) establishes a civil remedy for private citizens aggrieved by government violations of the background check fee or gun owner privacy provisions. After all, if firearms manufacturers should be subjected to civil liability for illegal acts, why shouldn't the government be liable if a law abiding gun owner's privacy protections are violated? As a Senior proudly representing the people of Utah, I take seriously our oath of office to defend our Union's defining document--the Constitution of the United States. I truly concur with the remarks of the great British Prime Minister William Gladstone when he wrote in 1878 that the ``American Constitution is * * * the most wonderful work ever struck off at a given time by the brain and purpose of man.'' So too, I am an avid supporter of the Second Amendment. I believe, following the teachings of virtually all the Founders of our Republic, that the right of citizens to keep and bear arms has justly been considered as, in the words of the learned Justice Joseph Story, ``the palladium of the liberties of the republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them.'' It is astonishing to me that despite this pedigree of the Second Amendment, the enemies of the right to keep and bear arms, those advocates of state-ism and the politics of the left, have stooped to new lows in their crusade to diminish the God-given liberties of the American people. Seeing that radical gun control measures are unpopular and cannot pass Congress and state legislatures, those hostile to the Second Amendment have resorted to a new tactic in a not-so-veiled attempt to undermine the right to keep and bear arms. They have resorted to misusing our civil litigation system by bringing law suits against the source of guns: firearms manufacturers. They seek damages from firearms manufacturers for any harm caused by gun wielding criminals, even though the manufacturers are not responsible for the crimes. This violates traditional precepts of American law, which is based upon the free-will notion that only those responsible should be held liable. More specifically, over the past few years the firearms manufacturing industry has been subjected to these numerous ``junk'' lawsuits seeking damages or injunctive relief for harm caused by third-party criminal actors. Many of these cases have been brought by local government entities, including approximately thirty American cities. The Clinton Administration had announced that it would support these lawsuits and publicly threatened that the Department of Housing and Urban Development would commence an action against the firearms manufacturers. Generally, the plaintiffs in these cases argue that although the firearms are legal products and despite the criminal actions of third parties, manufacturers and sellers should be held liable because of the negligent fashion in which they designed, marketed, and sold their products. This novel theory stands traditional tort law on its head. These radical lawsuits are onerous and may well bankrupt many firearms manufacturers. If a maverick judge were to rule in favor of the plaintiffs in one of these cases, the industry could face financial ruin. Indeed, the Louisiana state judge handling the City of New Orleans lawsuit recently refused to dismiss that lawsuit notwithstanding the enactment of a state law that nullified the cause of action. The net result may very well be the disappearance of a lawful product--firearms--from interstate commerce. Let me mention a junk lawsuit brought by the City of Chicago against 12 suburban gun shops, 22 gun manufacturers, and four gun distributors. The Chicago Tribune, in an editorial dated November 14, 1998, agreed that the mayor's anger at the misuse of handguns was understandable, but called his lawsuit ``wrongheaded and ill-advised'' because ``it represents an abuse of the tort liability system and a dangerous extension of the tactic employed in similar lawsuits against the tobacco industry of using potentially bankrupting lawsuits to force makers of legal but unpopular products to quit.'' To one federal district court, such lawsuits are ``an obvious attempt unwise and unwarranted to ban or restrict handguns through courts and juries, despite the repeated refusals of state legislatures and Congress to pass strong, comprehensive gun-control measures.'' [Patterson v. Rohm Gessellschaft, 608 F. Supp. 1206, 1211 (N.D. Tex. 1985)]. Indeed, in characterizing the federal lawsuit against the tobacco producers and the HUD suit threatened against the firearms industries, and in complete candor, former Clinton Secretary of Labor Robert Reich noted that: * * * the biggest problem is that these lawsuits are end runs around the democratic process. We used to be a nation of laws, but this new strategy presents novel means of legislating--within settlement negotiations of large civil suits initiated by the executive branch. This is faux legislation that sacrifices democracy to the discretion of administrative officials operating in secrecy. [Robert Reich, ``Don't Democrats Believe in Democracy,'' The Wall Street Journal, Wednesday, January 12, 2000]. Furthermore, these junk lawsuits seek to reverse the well-established tort law principle that manufacturers are not responsible for the criminal misuse of their products. For instance, the Seventh Circuit Court of Appeals in Martin v. Harrington and Richardson, Inc., [743 F. 2d 1200, 1205 (7th Cir. 1984)], held that criminal misuse of a handgun breaks the causal connection between the manufacturers action and the injury ``because such criminal activity is not reasonably forseeable.'' A judge from a federal district court noted that ``under all ordinary and normal circumstances in the absence of any reason to expect the contrary, the actor may reasonably proceed with the assumption that others will obey the criminal law.'' [Bennett v. The Cincinnati Checker Cab, 353 F.Supp. 1206, 1209 (E.D. Kent, 1973)]. It is important to note that in his opinion the judge cited the noted tort expert, the late Professor Prosser, for the proposition that entities are not liable for criminal acts of others because such acts are generally unforeseeable and thereby cut the chain of proximate causation. [Prosser, Torts, 3d ed. at 176]. Moreover, these lawsuits suffer from the same defect that some, if not all, of the courts in the federal tobacco lawsuit suffer from: lack of standing. Government entities, absent specific statutory authority-- which is not present in either the federal tobacco case or these gun manufacturers cases--may not recoup medical and other expenses paid by government agencies from manufacturers of products alleged to cause the harm to ``third party'' beneficiaries of government programs. For instance let me mention two cases. Holmes v. Securities Investor Protection Corp., [503 U.S. 258, 268-69 (1992)] and Laborers Local 17 Health Benefit Fund v. Phillip Morris, [191 F. 3d 229 (2nd Cir. 1999)]. These cases stand for the proposition that a complaint is too ``remote'' when a plaintiff seeks to recover damage to a third party. Therefore, the plaintiff lacks standing to bring the suit. This is exactly what Connecticut Superior Court Judge Robert McWeeny held when he recently dismissed the City of Bridgport's ``junk lawsuit'' complaint for recoupment against Smith & Wesson. [Ganim v. Smith & Wesson, [No. CV 990253198S (Superior Ct. Conn., Dec. 10, 1999)]]. Our judiciary is being transformed by these misguided advocates of gun control from courts of justice into tribunals of the gun control lobby. That is why this legislation is needed. The Congress has both a duty to protect federal constitutional rights such as the right to keep and bear arms, as well as to step in and reform our tort system when it is being abused and the abuse has a significant impact on interstate commerce. Let me say a few words about last Friday's announcement of the agreement between Smith & Wesson and HUD. Basically, the agreement mandates that Smith & Wesson would provide trigger locks within 60 days and make their handguns child resistant within a year. Smith & Wesson also agreed to a ``code of conduct'' whereby the manufacturer would sell its products only to ``authorized dealers and distributors'' who agree to have their contract terminated if ``a disproportionate number'' of crimes were traced to the firearms they sell. Some sort of outside board will police the settlement. In return, the federal government agreed not to bring suit against the firearms manufacturer and eleven of the thirty cities and local governments dropped their actions. I believe that this so-called ``deal'' is the latest attempt by the Administration to play on the fear of the American people for pure political advantage. It makes the Administration look good. It makes it seem that the Administration is doing ``something'' about gun violence. But the record makes clear that the Administration has done little to enforce the federal laws on the books against gun wielding criminals. So this settlement masks the truth. The Administration has been inept in preventing gun violence. Let me say, first of all, that I don't believe that the Administration ever really intended to see its lawsuit against the firearms manufacturers to verdict. Indeed, in announcing the projected lawsuit against the gun manufacturers, HUD Secretary Andrew Cuomo admitted to the press that the whole effort was simply a bargaining ploy. So let's call it what the federal lawsuit really is: extortion. It is an attempt to bypass the legislative process and the Constitution to achieve a gun control agenda that the public's elected officials oppose. Sue the industry and have them cave in or face imminent financial ruin by having to defend an avalanche of legally dubious lawsuits and bad publicity. That's their game plan. Well, Smith & Wesson caved in. Why? Published reports have it that the owner of Smith & Wesson, Tompkins PLC of Great Britain, could not find a buyer for the $161 million company with lawsuits hanging over its head. And Tompkins understands that three California gun companies have gone out of business and that legal fees may very well bankrupt the industry. So Tompkins surrendered. And the reward for their surrender: it was announced on Saturday that HUD and the mayors of Atlanta, Detroit and Miami directed their law enforcement agencies to give preferences to Smith & Wesson when purchasing firearms. [``Smith & Wesson Earns Preference,'' @ Home Network, AP, March 18, 2000] This is outrageous. Not only does this deal undercut the Second Amendment, it undercuts the principle of competitive bidding. It creates an incentive that tax payers will be gouged. It punishes innocent firearms manufacturers. It weakens the rule of law because innocent manufacturers are denied their day in court. It weakens democracy because the heavy hand of big government is used as a tool of despotism. But it is the ``code of conduct'' term of the settlement that is the most peculiar. Again, this provision mandates that Smith & Wesson sell its products only to ``authorized dealers and distributors'' who agree to have their contracts terminated if ``a disproportionate number'' of crimes are traced to the firearms they sell. Well, how is this to be determined? What is a disproportionate number of crimes? And how will this be traced to the dealer or distributor? And what if the dealer or distributor were innocent of any wrongdoing? It seems to me that this settlement term suffers from the same defect as the underlying ``junk lawsuits''--innocent parties are being held liable for the criminal acts of third parties. The settlement represents the misuse of governmental power. It represents a weakening of our democracy and the rule of law. Mr. President, let me turn to the provisions of the bill that will (1) prevent illicit fees to be charged for background checks, and (2) that protect the privacy of gun owners from federal intrusion. The Brady Handgun Control Act of 1993 is silent on whether the government may charge a fee for the instant background check required under 18 U.S.C. Sec. 922(t). And let me add that it was never contemplated that the government would charge such a fee when Brady was debated and passed. Nonetheless, despite no explicit legal authority, the Administration has repeatedly attempted to require the payment of such a fee by licensed firearms dealers--which fees would almost surely be passed along to purchasers through higher prices. This would truly amount to ``taxation without representation.'' Section 5 of our bill adds Section 540C to Title 28. This new section prohibits the Administration from promulgating a tax without Congress' approval. It codifies a prohibition on charging or collecting ``any fee in connection with any background check required in connection with the transfer of a firearm.'' The prohibition would apply both to the Federal government and ``State or local officers or employees acting on behalf of the United States.'' This section thus prohibits an unauthorized fee that may be considered to be a ``tax'' on the exercise of a constitutional right-- in this case, to buy a firearm. Finally, under the Brady bill, if the instant background check reveals that the buyer is eligible to purchase the firearm, the government is required to ``destroy all records of the system with respect to the call and all records of the system relating to the person or the transfer.'' [18 U.S.C. Sec. 922(t)(2)(C)]. The Brady bill also prohibits the government from using the instant check system to establish a registry of firearms, firearms owners, or firearms transfers, except with respect to persons prohibited from receiving a firearm. [Pub. L. 103-159, Sec. 103(i)]. Despite the law, the Administration promulgated regulations in 1998 that allowed the FBI to retain for 6 months information pertinent to an approved firearms sale gathered as part of the instant check system. [See C.F.R. Sec. 25.9(b)(1)]. But, I concur with those Second Amendment advocates who view these record retention periods as veiled attempts by the government to establish a national firearms registry. Furthermore, the only way to ensure the privacy and security of the information in the instant check system is to immediately destroy the records of approved firearms transfers. To address these concerns and preempt the Administration's efforts to undermine the Brady bill's ban on a national firearms registry, my bill would establish a new statute, Section 931 to title 18, that would prohibit the use of the instant check system unless the system ``require[s] and result[s] in the immediate destruction of all information, in any form whatsoever or through any medium,'' about any person determined not to be prohibited from receiving a firearm. The destruction requirement, however, would not apply to (1) ``any unique identification number provided by the [instant check] system,'' or (2) ``the date on which that number is provided.'' These exceptions parallel the exceptions contained in the Brady bill [see 18 U.S.C. Sec. 922(t)(2)(C)] and allow the government to trace a firearm to a dealer, but not to a purchaser. In conclusion, Mr. President, I urge my colleagues to support this legislation to prevent extortion against the manufacturers of a lawful product, firearms. I urge my colleagues to support this legislation to prohibit a tax on the exercise of constitutional right--the Second Amendment's guarantee of the right of the American citizen to keep and bear arms. And I urge my colleagues to support this legislation that protects the privacy of citizens who lawfully and peaceably possess firearms from federal intrusion. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. HATCH

Mr. HATCH. Mr. President, last week the Senate acted resoundingly and passed the critically needed conference report for funding the Federal Aviation Administration (FAA). I commend the efforts of our majority leader, Senator Lott, the Appropriations Committee chairman, Senator Stevens, and Budget Committee chairman, Senator Domenici. My colleagues here and over in the House have worked hard to arrive at this consensus. Both as a Senator and frequent flyer, I appreciate their efforts. At this time, I would like to reiterate several points I made during last year's debate in the Senate having to do with allowing exemptions to the current perimeter rule at Ronald Reagan Washington National Airport. I believe that the conference report balances the interests of states inside the perimeter with those of us from Western States who lack convenient access to Reagan National. I know my colleagues are aware of my support for efforts to ensure that these limited exemptions must benefit citizens throughout the West. I believe we must make it clear that these limited number of exemptions should not be awarded solely or disproportionately to one carrier. I fully anticipate that the Department of Transportation will ensure that the maximum number of cities benefit from these slots. While I would have preferred to eliminate the perimeter rule altogether, which I believe would have substantially improved access to the West, I am hopeful that DOT will ensure that small and midsized communities in West, especially in the Northern tier, have improved access through hubs like Salt Lake City. I believe an important component of aviation reform is to improve air service for communities that have not experienced the benefits of deregulation to the extent large markets have. Today, Utahns must double or even triple connect to fly into Reagan National. I look forward to working with my colleagues and the DOT to ensure that citizens in the west have improved access and a variety of options when they travel.

Mr. HATCH

Mr. HATCH. Madam President, I rise today in strong support for H.R. 5, the Senior Citizens' Freedom to Work Act, which the Senate will begin considering tomorrow. Seniors in my home State of Utah and around the nation have waited a long time for the relief H.R. 5 will bring. I am so pleased that not only did the House pass this bill on March 1 by a vote of 422 to 0, and the Senate is very likely to follow suit tomorrow, but also that the President has finally come around and has indicated he will sign the bill. Under current law, over 800,000 Social Security recipients between the ages of 65 and 70 are affected by the so-called earnings limit. Over 6,100 of these live in Utah. This limit provides that senior citizens who this year earn more than $17,000 in wages or self- employment income will lose some of their Social Security benefits. More specifically, for every $3 earned over the $17,000 threshold, $1 in benefits is lost. The bill we will take up tomorrow will remove this unfair limitation. There are at least five reasons why H.R. 5 should be passed by this body with a resounding margin so this oppressive limitation, which holds back senior citizens to the detriment of everybody in this country, can be lifted. First, the earnings limit is plainly unfair to senior citizens. What kind of a message does the current law send to a worker turning age 65, Mr. President, when he or she learns that there will be a 33 percent penalty for continuing to work once his or her earnings exceed $17,000? Yet, at the same time, senior citizens who are fortunate enough to have interest, dividend, or capital gains income from stocks, bonds, or mutual funds, or income from a private pension, are not penalized, no matter how much of these kinds of income they receive. Even if the earnings limit otherwise had merit, which it doesn't, it punishes the very people who most need to work to makes ends meet. Second, the earnings limit is outdated. The limit was a feature of the original Social Security Act in 1935. It was included to encourage seniors to retire so their jobs would be available to the millions of younger workers who were unemployed in the difficult job market of the Great Depression. That was a different era. What was appropriate in 1935 is clearly not appropriate in 2000, when it is workers, not jobs, that are scarce. Third, the earnings limit places extremely high marginal tax rates on workers between the ages of 65 and 70 who continue to work. Consider the example of a 66-year-old plumber I will call Howard. Along with his son, Howard has run a small plumbing business in Ogden, UT, for over 20 years. Now that he is over 65, Howard has decided to turn the management of the business over to his son. However, Howard still wants to work, and because of an aged mother whom he takes care of, he still needs some income. Howard works three days a week and earns $35,000 per year. Believe it or not, when the earnings limit penalty of 33 percent is combined with the income tax rate of 28 percent, the self-employment tax rate of 15.3 percent, and the effect of taxing his Social Security benefits at 85 percent, Howard faces a marginal tax bracket of 88.8 percent, not counting the Utah income tax. This high a marginal tax rate is unconscionable and indefensible any way you look at it. Fourth, the earnings limit is terrible for our economy. The biggest problem our economy faces right now is a severe shortage of workers. This is especially true in the high technology fields, where our shortages are so severe that we must increase the number of H-1B visas allowed this year so our high tech firms can stay competitive. However, turning to overseas workers is only a temporary solution. We need a long-term answer to this problem, which is only going to be exacerbated by current demographic trends, and the retirement of the baby boom generation. Our senior citizens are a wonderful resource that is not being tapped enough. Only 17 percent of males over age 65 are now working, compared with 47 percent in 1948. These workers are experienced, and in many cases, they want to keep working. In order for this to happen, though, we need to scuttle outdated relics like this Social Security earnings test. Finally, the earnings limit is no longer relevant, considering the growing longevity of Americans. In 1935, when the earnings limit was added to the Social Security Act, life expectancy in this country was 62 years. Now, it is 77 years. Moreover, senior citizens are the fastest growing segment of our population. There is absolutely no reason these citizens cannot keep on working if they desire to do so. I have read articles that the life expectancy of the American people may soon be approaching 85. Therefore, I am very gratified to see that this earnings limit repeal is about to pass the Senate. And again, I am especially pleased that President Clinton has agreed to put aside election year politics and sign this legislation. As important and long awaited this earnings limit repeal is, I want to emphasize that it does not lessen the need for comprehensive Social Security reform. Besides the repeal of the earnings test, there are many other vital issues that must be addressed to ensure the long-term viability of the system. These include the large and difficult question of how to best increase the system's rate of return in order to lessen the need for any benefit cuts or payroll tax increases once the Social Security trust fund runs out of spending authority. Other important issues that need to be addressed in the context of fundamental Social Security reform include work disincentives for blind workers. Many of our blind citizens are also subject to a type of limit on their earnings, in which they lose Social Security disability payments once their earnings reach $14,040 per year. For many of the same reasons that the earnings limit is unfair to senior citizens, the ``substantial gainful activity'' limit is unfair to those workers disabled by blindness. I wish H.R. 5 could accommodate this unfairness by ameliorating this earnings limit and removing the disincentive these workers face today. I wish President Clinton would have used some of his political capital in this final year of his Presidency to lead the way to major Social Security reform. Regrettably, the President has made it clear that broad reform will have to wait for the leadership of another President. I urge all of my colleagues to vote yes for H.R. 5 and let's finally repeal the unfair earnings limit on senior citizens. I suggest the absence of a quorum.

Mr. HATCH

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

Mr. HATCH

Mr. HATCH. Mr. President, I was listening in the past hour to the eloquent statement of Senator Murkowski explaining why the Ninth Circuit ought to be split. His statement comes 2 days after Senator Murkowski and I introduced legislation that would split that circuit into two more manageable circuits. It strikes me that this subject is precisely the one that this body ought to be debating today as the real solution to the stated concerns about the Ninth Circuit. As I explained recently on the Senate floor, the massive size of the circuit's boundaries has confronted the circuit's judges with a real difficulty in maintaining the coherence of its circuit law. I will not let my concerns regarding the Ninth Circuit--many of which appear to me to be structural in dimension--affect my judgment on the confirmation of Judge Paez, who is an innocent party with regard to that circuit's dubious record. Doing so would force him into the role of Atlas in carrying problems not of his own making. Mr. President, I rise today to speak on the nomination of federal district Judge Richard Paez to the Ninth Circuit Court of Appeals. I have to say, I have served a number of years in the Senate, and I have never seen a ``motion to postpone indefinitely'' that was brought to delay the consideration of a judicial nomination post-cloture. Indeed, I must confess to being somewhat baffled that, after a filibuster is cut off by cloture, the Senate could still delay a final vote on a nomination. A parliamentary ruling to this effect means that, after today, our cloture rule is further weakened. But on occasion, like Justice Holmes' statement about the law, the life of the Senate is not logic but experience. And I have no interest in quibbling further with this ruling. As I turn to the merits of the situation before us, I want to begin by commending the efforts of my colleague from Alabama for his legal acumen and tenacity in presenting his case why a further postponement in considering Judge Paez's nomination would be warranted. I am proud to have worked with Senator Sessions on legislation involving civil asset forfeiture, and involving youth violence, and a whole raft of other issues, as well. Senator Sessions' prosecutorial talents have not left him, and my respect for him as a principled advocate has never been greater than today. The same goes for Senator Smith. Still, I must take exception to the point that he has so forcefully advocated. I must explain why the time has finally come for an up-or- down vote to be cast on Judge Paez's nomination. Senator Sessions' request for a postponement is grounded in Judge Paez's handling of the Government's case against John Huang. Let us begin with the determinative fact: Though Mr. Huang may have been involved in illegalities in connection with the Clinton-Gore reelection campaign of 1996, he was not charged with a single such count. The Assistant United States Attorney who was asked why no such charges were brought responded by saying that: ``we investigated all the allegations and felt that the charges in this case fully addressed his culpability.'' Ultimately, Mr. Huang pleaded guilty to a single felony charge of conspiring to violate Federal election law. In that plea, he admitted to laundering a $2,500 contribution to an unsuccessful contestant in Los Angeles' 1993 mayoral campaign, and $5,000 to an entity called the California Victory Fund '94, the funds of which were shared by a Democrat candidate, the Democratic Party, and two Democrat committees. Prosecutors--in exchange for Mr. Huang's guilty plea to this single charge--recommended that Mr. Huang receive no jail time, but instead be ordered to pay a $10,000 fine and provide 500 hours of community service. Judge Paez accepted the prosecutor's recommendation, which was consistent, by the way, with the report of the probation office. So with this factual premise, I would like to address Senator Sessions' argument that Mr. Huang's sentence--which he concedes was the one recommended by the prosecution--was insufficiently harsh. From that premise, there are only a few possibilities: First, that Judge Paez should have ignored the Federal prosecutors and handed down a stiffer penalty than the one they recommended. But let's consider this. From a man like Senator Sessions who believes--as I do--in judicial restraint, it is anomalous to suggest that judges should depart from the adversarial system and impose their own view of an appropriate punishment. A second alternative is that the prosecution should have recommended a stronger punishment, and that Judge Paez ought to have accepted it. That may indeed be correct. I am on record as expressing similar concern about the level of punishment sought. I am very upset about what the prosecutors did in this matter. But the problem with this hypothesis is that it is just that --a hypothesis. The prosecution did not recommend a stronger sentence. And we should not castigate Judge Paez for the acts of another--in this case, the prosecution--by holding him accountable for the prosecution's failure to make a stronger case against John Huang. In any event, neither of these scenarios is one in which Judge Paez can fairly be faulted for not acting more aggressively. Of course, there is nothing to suggest any sort of impropriety pursuant to which Judge Paez acted in sync with prosecutors to ensure a lenient handling of a case so sensitive to the Clinton administration. Nor is there any evidence at all to suggest that a departure was made in this case from the automated, random case-assignment system utilized in the Federal court for the Central District of California. Yes, I believe some inside and outside this administration have engaged in fraud upon fraud against the laws, ethical norms, and the people of this country. But I cannot accept, in the absence of any supporting evidence, that two branches of Government engaged in a conspiracy to alleviate a defendant of responsibility for violations of Federal law. This speculative theory should not become the basis for any further delay by the United States Senate. There is no reasonable basis--let alone any hint of evidence--to suggest that further delay would amount to anything other than further delay. Of course, I can understand and appreciate fully why it is that some of my colleagues remain so dubious about the results of the Huang prosecution. It is because that prosecution was born out of an egregious conflict of interest with the President's own prosecutors-- subject always to his own oversight and control--being asked to investigate a matter that, if ultimately prosecuted in an appropriately zealous fashion, could have led to enormous embarrassment to the President. The result is that the prosecution's decision not to prosecute any of the wrongdoing alleged in connection with the President's reelection campaign can be objectively viewed as a cover-up, and as favoritism to the President. No less a person than Senator Sessions, among many others in this body, retain such doubts. And if they have doubts, it is to be expected that the American people have doubts, thereby undermining the public's faith in the rule of law in this country. This is precisely why I called so insistently upon our Attorney General to appoint an independent prosecutor to investigate all alleged illegalities involving our Federal campaign laws in connection with the 1996 Clinton-Gore campaign. The Judiciary Committee, under my direction, was the first to formally request the appointment of an independent counsel to investigate alleged illegalities in connection with the President's 1996 reelection campaign. And the Judiciary Committee has formed a formal task force, led by Senator Specter, to inquire into the Department of Justice's handling of this and other campaign finance investigations. But for purposes of our vote today, the determinative point is that our concerns about the manner in which our Federal campaign finance laws have been flouted do not at all implicate Judge Paez. So we must now proceed to put this matter to a vote, and end the lengthy delay in this matter by choosing--on the basis of the abundant evidence known to us at this time--whether it shall be yea or nay on Judge Paez' nomination. No further information or delay is needed to cast an intelligent and knowing vote on this nomination. Mr. President, I thank my colleagues for allowing me to make this statement.

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

Mr. HATCH. Mr. President, I ask unanimous consent, since we need a little more time and I need to make some remarks on this, that the remaining time be 3 minutes for the distinguished Senator from New Hampshire, Mr. Smith; 3 minutes for the distinguished Senator from Vermont, Mr. Leahy; and 8 minutes for myself.

Mr. HATCH. Mr. President, perhaps I can start first.

Mr. HATCH. That is part of my unanimous consent request.

Mr. HATCH

Mr. HATCH. Mr. President, I support the nominations of Ms. Berzon and Judge Paez, and spoke yesterday urging my colleagues to do the same. I would hope my remarks prove persuasive. But if they do not, my colleagues of course are free to reasonably disagree with my view and to cast a vote against these candidates. It is quite another story, however, for members of this body to frustrate a majority vote on these nominees by forcing a super-majority cloture vote. I have reached this conclusion after having been part of this process for over 20 years now, and having served as Chairman of the Judiciary Committee for more than half a decade. There are times when legislators must, to be effective, demonstrate their mastery of politics. But there are also times when politics-- though available--must be foresworn. I am reminded of the great quote of Disraeli, which I will now paraphrase--``next to knowing when to seize an opportunity, the most important thing is knowing when to forego an advantage.'' I hope my colleagues will forego the perceived advantage of a filibuster. Simply put, there are certain areas that must be designated as off- limits from political activity. Statesmanship demands as much. The Senate's solemn role in confirming lifetime-appointed Article III judges--and the underlying principle that the Senate performs that role through the majority vote of its members--are such issues. Nothing less depends on the recognition of these principles than the continued, untarnished respect in which we hold our third branch of Government. On the basis of this principle, I have always tried to be fair, no matter the President of the United States or the nominees. Even when I have opposed a nominee of the current President, I have voted for cloture to stop a filibuster of that nominee. That was the case with the nomination of Lee Sarokin. To be sure, this body has on occasion engaged in the dubious practice of filibusters of judicial nominees. But such episodes have been infrequent and, I shall add, unfortunate. During a number of occasions in the Reagan and Bush Administrations, my colleagues on the other side engaged in filibusters of judicial nominees. Frequently, they backed off, ostensibly realizing there were enough votes to stop a filibuster. And just last year, I watched with sadness as the minority made history by filibustering one of its own party's nominees. Forcing a cloture vote on Clinton nominee Ted Stewart--who is now acquitting himself superbly as a district judge in Utah--reflected nothing more than a political gambit to force action on other judicial nominees. Fortunately, the effects of that filibuster were short-lived, as the minority recognized the errors of its ways. These unfortunate episodes do not a precedent make. The fact that these actions precede us does not establish a roadmap for the Senate's handling of future nominations. Moreover, these filibusters were limited in number. During some of the Reagan and Bush years, I thought our colleagues on the other side did some reprehensible things in regard to Reagan and Bush judges. But by and large, the vast majority of them were put through without any real fuss or bother, even though my colleagues on the other side, had they been President, would not have appointed very many of those judges. We have to show the same good faith on our side, it seems to me. My message against filibusters of judicial nominees is one I hope to make abundantly clear to my colleagues in the majority. This is so because, to the extent our majority party gives repeated credence to the practice of filibustering judicial nominees, we can expect the favor to be returned when the President is one of our own. We hope in earnest that the next President will hail from our party. And if we are gratified in that hope, how short-sighted it will have been that we gave a fresh precedent to the minority party in this body to defeat--by requiring not 51 but a full 60 votes--that Republican President's judicial nominees. It is important to remember another reason against filibustering judicial nominees. Most of the fight over a nomination has occurred well before a nominee arrives at the Senate floor. Proverbial battles are fought between people in the White House and members of the Judiciary Committee. As a general matter, when nominees get this far, most of them should be approved. Though there are some that we will continue to have problems with, it is our job to look at them in the Judiciary Committee. That is our job--to look into their background. It is our job to screen these candidates. In the case of both Ms. Berzon and Judge Paez, each was reported favorably to the floor. And now we have the unusual situation of a Democrat President, the Republican and Democrat Senate Leaders, and Republican and Democrat Chairman and Ranking Member of the Judiciary Committee, all agreeing that votes on the nominees should go forward. But certain Senators who oppose these nominees have nonetheless elected to thwart such votes. At bottom, it is a travesty if we establish a routine of filibustering judges. We should not play politics with them.

Mr. HATCH

Mr. HATCH. Mr. President, I rise today to speak on the nomination of federal district Judge Richard Paez to the Ninth Circuit Court of Appeals. Judge Paez was first nominated for this judgeship during the second session of the 104th Congress--a time when all nominees to the Ninth Circuit got bound up with the difficulties we were having in deciding whether to divide the Circuit. Once we established a Commission to study the matter, we were able to begin processing nominees to that court. Judge Paez was renominated at the beginning of the 105th Congress, but due to questions surrounding his record on the bench and comments he made about two California initiatives, his nomination elicited heightened scrutiny. Some have attributed this delay in Judge Paez's consideration by the full Senate to sinister or prejudicial motives. And I can only respond by stating what those very critics already know in their hearts and minds to be true: such aspersions are utterly devoid of truth, and are grounded in nothing more than sinister, crass politics. As we all know, before any judge can be confirmed, the Senate must exercise its duty to provide assurance that those confirmed will uphold the Constitution and abide by the rule of law. Sometimes it takes what seems to be an inordinate amount of time to gain these assurances, but moving to a vote without them would compromise the integrity of the role the Senate plays in the confirmation process. And so, it has taken a considerable amount of time to bring Judge Paez's nomination up for a vote. Indeed, it was not before a thorough and exhaustive review of Judge Paez's record that I have become convinced that questions regarding Judge Paez's record have, by and large, been answered. Because such questions have been answered does not, in all instances, mean they have been answered to my complete satisfaction. But on the whole, I am persuaded that Judge Paez will be a credit to the Ninth Circuit Court of Appeals. In so concluding, I do not want to diminish the seriousness of the concerns raised about certain aspects of Judge Paez's record. I was troubled by comments Judge Paez made about two California initiatives on April 6, 1995, while sitting as a U.S. District Court Judge. At that time, Judge Paez gave a speech at his alma mater, Boalt Hall School of Law, criticizing the passage of Proposition 187 and criticizing the ballot measure that would later be known as Proposition 209. He described Prop 209 as ``the proposed anti-civil rights initiative'' and said it would ``inflame the issues all over again, without contributing to any serious discussion of our differences and similarities or ways to ensure equal opportunity for all.'' Judge Paez went on to opine that a ``much more diverse bench'' was essential in part because how ``Californians perceive the justice system is every bit as important as how courts resolve disputes.'' When questioned at his hearing about these and other comments contained in the speech, Judge Paez stated that he was referring only to the potential divisive effect Prop 209 would have on California. He acknowledged that the Ninth Circuit had in fact upheld the constitutionality of Prop 209 and that this ruling resolved any question as to the legitimacy of the initiative. He also stated that he disagreed with the use of proportionality statistics in Title VII or employment litigation. And, perhaps most telling of his judicial philosophy, Judge Paez stated that federal judges must ``proceed with caution, and respect that the vote of the people is presumed constitutional.'' Legitimate questions have been raised concerning whether his comments were consistent with the Judicial Canon governing judges' extra- judicial activities, and Judge Paez maintains that his remarks fit within the exception set out in that Canon that permits a judge to make a scholarly presentation for purposes of legal education. I also raised concerns about a decision of Judge Paez's that would allow liability to be imposed on a U.S. company for human rights abuses committed by a foreign government with which the U.S. company had engaged in a joint venture. But it is a single moment in a lengthy catalog of cases in which Judge Paez appears to have handed down solid, legally-supported, precedent-respecting decisions. Moreover, Judge Paez has earned a good deal of bipartisan support within his home state of California and his native state of Utah, and has given me his word that he will abide by the rule of law and not engage in judicial activism. For these reasons, I am not willing to stand in the way of this nominee's confirmation. It was during the Committee's thorough review of his record that I became aware of Judge Paez's credentials and career of public service. He is a Salt Lake City native who graduated from Brigham Young University and he received his law degree from Boalt Hall. Before becoming a Judge on the Los Angeles Municipal Court, he served as an attorney for California Rural Legal Assistance, the Western Center on Law and Poverty, and the Legal Aid Foundation of Los Angeles--and during that time provided legal representation to a Korean War veteran in danger of losing his home to foreclosure, victims of intentional racial discrimination, and others. In 1994, President Clinton nominated, and the Senate confirmed, Judge Paez to sit on the district court bench in the Central District of California. Although I share many of my colleagues' concerns regarding the stability of the Ninth Circuit, none of us can in good conscience foist those concerns upon Judge Paez--an entirely innocent party with regard to that Circuit's dubious record of reversal by the Supreme Court--and force him into the role of Atlas in carrying problems not of his own making. Indeed, that Circuit's problems--many of which appear to me to be structural in dimension--call for an altogether different solution than that which this body would seek to impose through its advice and consent powers. And to that end, I have just [this morning] introduced legislation with Senator Murkowski that is being held at the desk so as to enable immediate action by the full Senate--that would divide the 28-judge behemoth of a circuit into two manageable circuits. To return to the different subject of Judge Paez, I must concede that I have had concerns about his nomination. But on balance I do not believe that Judge Paez will contribute to the roguery that appears to have infiltrated this circuit. I would not, as Chairman of the Judiciary Committee, vote for the confirmation of any nominee who I believed would abdicate his or her duty to interpret and enforce, rather than make, the laws of this Nation. For these reasons, I will cast a vote in favor of the nomination of Judge Paez to serve on the Ninth Circuit Court of Appeals. I hope a majority of my colleagues will do likewise. Mr. President, I also rise to speak on behalf of the nomination of Marsha S. Berzon for a seat on the United States Court of Appeals for the Ninth Circuit. Based upon Ms. Berzon's qualifications as a lawyer, I support her nomination. I urge my colleagues to do the same. It cannot be disputed that Ms. Berzon's training and experience qualify her for a life of public service as a federal appellate judge. Indeed, Ms. Berzon's qualifications are unimpeachable, and her competence is beyond question. Ms. Berzon completed her undergraduate studies at Harvard/Radcliffe College, and then was graduated from the Boalt Hall Law School at the University of California. After law school, Ms. Berzon served as a judicial clerk--first for Judge James R. Browning of the United States Court of Appeals for the Ninth Circuit, and then for Justice William J. Brennan, Jr. of the United States Supreme Court. For the last 25 years, Ms. Berzon has built a national reputation as an appellate litigator at a private law firm in San Francisco. She has argued four cases and filed dozens of briefs before the United States Supreme Court, and has argued numerous cases before State and federal trial and appeals courts. In addition to representing private clients, Ms. Berzon also has represented the States of California and Hawaii, and the City of Oakland, California. Ms. Berzon is uniformly described as honest, intelligent and fair-minded. Attorney J. Dennis McQuaid, whom she opposed in a case, later stated that ``unlike some advocates, she enjoys a reputation that she is devoid of any remotely partisan agenda and that her service on the court will be marked by decisions demonstrating great legal acumen, fairness and equanimity.'' Another opposing counsel, Carter G. Phillips, said that in a case involving delicate federalism issues, Ms. Berzon . . . did an extraordinary job of presenting her clients' position aggressively without overreaching. She presented solid limiting principles that would allow the lawsuit to go forward without placing too much of a burden on the State. I thought her submissions, both written and oral, demonstrated a significant effort to balance the respective interests implicated by the legal issue. . . . Her advocacy demonstrated skill, integrity and sound judgment. These are precisely the traits I would want in a federal appellate judge. Simply put, Ms. Berzon appears to have the intellect, integrity and impartiality to serve as a federal judge. The fact that many of Ms. Berzon's clients have been unions should not disqualify her from being confirmed. That Ms. Berzon has advocated on behalf of unions--and, by all accounts, advocated well--cannot, I think, be determinative of her qualifications. In her testimony before the Judiciary Committee, Ms. Berzon testified that she is committed to following the Supreme Court's Beck decision, which sets forth the statutory rights of employees who object to their union dues being used for political activities. Moreover, Ms. Berzon testified that, if confirmed, she will make decisions based upon the law and the facts of the particular case before her. No one has shown me evidence why I should not take Ms. Berzon at her word. In addition to having excellent legal training and experience as a lawyer, Ms. Berzon also has experience in legal academia. She has taught law students as a practitioner-in-residence at Cornell University Law School and at Indiana University Law School, and has published articles on various legal topics. In my view, she will bring to the Ninth Circuit a significant measure of intelligence, experience and legal scholarship. In conclusion, Ms. Berzon is well-qualified to assume a seat on the United States Court of Appeals for the Ninth Circuit. She enjoys a reputation among colleagues and opposing counsel for being a fair- minded, well-prepared, and principled advocate. I therefore will cast my vote in favor of Ms. Berzon's confirmation.

Mr. HATCH. I ask unanimous consent that the debate now occur concurrently on the two nominations, as under the previous order; however, that any votes ordered with respect to the nominations occur separately.

Mr. HATCH. That is my understanding.

Mr. HATCH

Mr. HATCH. Mr. President, I rise to speak this morning to discuss legislation that I have introduced with Senator Murkowski that would divide the Ninth Circuit into two manageable circuits. I have been told of a children's song that, with its circular and repetitious melody, is called ``the song without an end.'' And that might be an apt description of our efforts to reach some resolution with the nagging problem of the Ninth Circuit's boundaries. Indeed, I am told that calls to reexamine the boundaries of what is presently called the Ninth Circuit were first made more than a century ago. In more recent history: A congressional commission--the Hruska Commission--recommended a split of the Ninth Circuit--not just the Fifth Circuit-- in 1973; In 1995 I held a hearing before the Judiciary Committee to examine a proposal to split the circuit; In 1997, as part of the Commerce, Justice, State Appropriations bill, the Senate passed a split proposal which was ultimately replaced with a provision creating a commission to report on structural alternatives for the Federal Courts of Appeals--and the Ninth Circuit in particular; and Last year, Senator Murkowski, and others, introduced legislation to implement the recommendation of that commission, which would have maintained the circuit's structural boundaries, but partitioned its Court of Appeals into three semi-autonomous divisions. Yet here we stand, like Sisyphus with the boulder at his feet, with nothing to show for years of effort. All the while, the problems perceived in the Ninth Circuit itself have not disintegrated with the passage of time. Rather, as we look at that circuit's boundaries, what is immediately apparent is its gargantuan size. That factor, in itself, by no means justifies a remedy in the form of a change in boundaries. But it does serve as a necessary starting point from which to explain many of the criticisms that have been lodged against the circuit. Stretching across nine States and two territories, and constituting some 14 million square miles, the Ninth Circuit serves the largest U.S. population by far--more than 51 million people. The Ninth Circuit is authorized by statute to maintain 28 active Court of Appeals judges. The next largest circuit--the Fifth--has only 17 active judges, and most other circuits have 12 or fewer judges. Though the size of the circuit is not in itself a reason to modify its boundaries, the problems resulting from the circuit's size are. Most notably, the massive size of the circuit's boundaries has confronted the circuit's judges with a real difficulty in maintaining the coherence of its circuit law. This is because there are enormous obstacles both, one, to keeping abreast of the circuit's decisions, and, two, to correcting those decisions that stray from the law of the circuit. With regard to the first concern, various conscientious judges on the Ninth Circuit have stated they are unable to read the number of published decisions being issued by their colleagues, given the sheer volume of such opinions. They have stated that frequently, there is no time to do anything more than review the head notes of such decisions. This is a serious problem from which other problems ensue. Absent the ability of each active judge on the Ninth Circuit to read each such published decision, there can be no assurance that calls will be made for en banc review of those cases which judges believe merit rehearing by a larger component of the court. With regard to the second concern--the ability to correct decisions that stray from the circuit law--the large size of the Ninth Circuit presents a tremendous impediment. At present, a special exception has been made by Congress to better enable the Ninth Circuit to review 3- judge decisions en banc, and that process--known as limited en banc-- involves the empaneling of only 11 judges, rather than the circuit's full complement of 28 judges. In my view, this system is being utilized with insufficient frequency. And the result is that the stated aim of Federal Rule of Appellate Procedure 35--to secure or maintain uniformity of the court's decisions--is being thwarted. Moreover, the mechanism is imperfect, and simple math proves the point. It is entirely conceivable that a limited en banc decision could be handed down by an 11-to-0 vote, and yet not reflect the views of a majority of the circuit's judges. Nor is it any answer to say that the Ninth Circuit's rules allow for full en banc hearings with all 28 judges, since no such hearing has ever taken place. The problems with the lack of internal decisional consistency within the Ninth Circuit have become all too obvious. Three terms ago, the Ninth Circuit's reversal rate before the U.S. Supreme Court exceeded 95 percent. It is no cause for celebration to note that during the last two terms, the Ninth Circuit reversal rate averaged 77 percent, and this term I have noted that the Ninth Circuit is not faring particularly well, with a record of 0 to 7 before the Supreme Court. What is really wrong is there are literally thousands of cases they hear that they are probably making the wrong decisions on that will never go to the Supreme Court because the Court doesn't have time to listen to thousands of cases from the Ninth Circuit Court of Appeals. So we are having all kinds of injustice out there just because of judges who are out of control, who are activist judges ignoring the law itself. I believe these problems will be corrected when we streamline the circuit, leaving two more manageable circuits in place to more carefully and exactingly do the work currently undertaken by one. I believe the system of error correction and the assurance of coherence of circuit law will be a more manageable task in two circuits where the judges of each will have one-half as many of their colleagues' opinions to read for compliance with and correction of their circuit law. To this end, Senator Murkowski and I have drafted a measure we believe reflects sound public policy. It would continue to denominate as part of the Ninth Circuit the States of California, Nevada, and Arizona, as well as the island territories currently within the Ninth Circuit. The proposal would place Hawaii and the Northwest States within a new Twelfth Circuit. Such a proposal results in a logical split. Indeed, the contours of this very proposal were set out as an alternative option in the final report of the Commission on Structural Alternatives. And it maintains geographic coherence by avoiding the type of gerrymandered circuit that would have resulted from the split proposal passed by the Senate in 1997, although I could very easily go for that as well. As a final word, I express for the record my appreciation for the very substantial work performed by the members and staff of the Commission on Structural Alternatives. Its final work product is a most capable report, and the Commission's work under Justice White will truly become part of the history of relations in this country before the Congress and the Judiciary. With that thanks, I will close my remarks on this by urging my colleagues to act on this sensible proposal to solve a problem that has persisted for far too long. There are some of our colleagues who are very upset at the Ninth Circuit Court of Appeals and its record of reversal by the Supreme Court. I just raised the issue that there may be thousands of cases that need to be reversed, but the Supreme Court doesn't have time to do that. I think they would be much more concerned about voting for and passing this split of the Ninth Circuit than they would attacking some of the judges who are up for nominations.

Mr. HATCH

Mr. HATCH. Mr. President, I rise to speak this morning to discuss legislation that I have introduced with Senator Murkowski that would divide the Ninth Circuit into two manageable circuits. I have been told of a children's song that, with its circular and repetitious melody, is called ``the song without an end.'' And that might be an apt description of our efforts to reach some resolution with the nagging problem of the Ninth Circuit's boundaries. Indeed, I am told that calls to reexamine the boundaries of what is presently called the Ninth Circuit were first made more than a century ago. In more recent history: A congressional commission--the Hruska Commission--recommended a split of the Ninth Circuit--not just the Fifth Circuit-- in 1973; In 1995 I held a hearing before the Judiciary Committee to examine a proposal to split the circuit; In 1997, as part of the Commerce, Justice, State Appropriations bill, the Senate passed a split proposal which was ultimately replaced with a provision creating a commission to report on structural alternatives for the Federal Courts of Appeals--and the Ninth Circuit in particular; and Last year, Senator Murkowski, and others, introduced legislation to implement the recommendation of that commission, which would have maintained the circuit's structural boundaries, but partitioned its Court of Appeals into three semi-autonomous divisions. Yet here we stand, like Sisyphus with the boulder at his feet, with nothing to show for years of effort. All the while, the problems perceived in the Ninth Circuit itself have not disintegrated with the passage of time. Rather, as we look at that circuit's boundaries, what is immediately apparent is its gargantuan size. That factor, in itself, by no means justifies a remedy in the form of a change in boundaries. But it does serve as a necessary starting point from which to explain many of the criticisms that have been lodged against the circuit. Stretching across nine States and two territories, and constituting some 14 million square miles, the Ninth Circuit serves the largest U.S. population by far--more than 51 million people. The Ninth Circuit is authorized by statute to maintain 28 active Court of Appeals judges. The next largest circuit--the Fifth--has only 17 active judges, and most other circuits have 12 or fewer judges. Though the size of the circuit is not in itself a reason to modify its boundaries, the problems resulting from the circuit's size are. Most notably, the massive size of the circuit's boundaries has confronted the circuit's judges with a real difficulty in maintaining the coherence of its circuit law. This is because there are enormous obstacles both, one, to keeping abreast of the circuit's decisions, and, two, to correcting those decisions that stray from the law of the circuit. With regard to the first concern, various conscientious judges on the Ninth Circuit have stated they are unable to read the number of published decisions being issued by their colleagues, given the sheer volume of such opinions. They have stated that frequently, there is no time to do anything more than review the head notes of such decisions. This is a serious problem from which other problems ensue. Absent the ability of each active judge on the Ninth Circuit to read each such published decision, there can be no assurance that calls will be made for en banc review of those cases which judges believe merit rehearing by a larger component of the court. With regard to the second concern--the ability to correct decisions that stray from the circuit law--the large size of the Ninth Circuit presents a tremendous impediment. At present, a special exception has been made by Congress to better enable the Ninth Circuit to review 3- judge decisions en banc, and that process--known as limited en banc-- involves the empaneling of only 11 judges, rather than the circuit's full complement of 28 judges. In my view, this system is being utilized with insufficient frequency. And the result is that the stated aim of Federal Rule of Appellate Procedure 35--to secure or maintain uniformity of the court's decisions--is being thwarted. Moreover, the mechanism is imperfect, and simple math proves the point. It is entirely conceivable that a limited en banc decision could be handed down by an 11-to-0 vote, and yet not reflect the views of a majority of the circuit's judges. Nor is it any answer to say that the Ninth Circuit's rules allow for full en banc hearings with all 28 judges, since no such hearing has ever taken place. The problems with the lack of internal decisional consistency within the Ninth Circuit have become all too obvious. Three terms ago, the Ninth Circuit's reversal rate before the U.S. Supreme Court exceeded 95 percent. It is no cause for celebration to note that during the last two terms, the Ninth Circuit reversal rate averaged 77 percent, and this term I have noted that the Ninth Circuit is not faring particularly well, with a record of 0 to 7 before the Supreme Court. What is really wrong is there are literally thousands of cases they hear that they are probably making the wrong decisions on that will never go to the Supreme Court because the Court doesn't have time to listen to thousands of cases from the Ninth Circuit Court of Appeals. So we are having all kinds of injustice out there just because of judges who are out of control, who are activist judges ignoring the law itself. I believe these problems will be corrected when we streamline the circuit, leaving two more manageable circuits in place to more carefully and exactingly do the work currently undertaken by one. I believe the system of error correction and the assurance of coherence of circuit law will be a more manageable task in two circuits where the judges of each will have one-half as many of their colleagues' opinions to read for compliance with and correction of their circuit law. To this end, Senator Murkowski and I have drafted a measure we believe reflects sound public policy. It would continue to denominate as part of the Ninth Circuit the States of California, Nevada, and Arizona, as well as the island territories currently within the Ninth Circuit. The proposal would place Hawaii and the Northwest States within a new Twelfth Circuit. Such a proposal results in a logical split. Indeed, the contours of this very proposal were set out as an alternative option in the final report of the Commission on Structural Alternatives. And it maintains geographic coherence by avoiding the type of gerrymandered circuit that would have resulted from the split proposal passed by the Senate in 1997, although I could very easily go for that as well. As a final word, I express for the record my appreciation for the very substantial work performed by the members and staff of the Commission on Structural Alternatives. Its final work product is a most capable report, and the Commission's work under Justice White will truly become part of the history of relations in this country before the Congress and the Judiciary. With that thanks, I will close my remarks on this by urging my colleagues to act on this sensible proposal to solve a problem that has persisted for far too long. There are some of our colleagues who are very upset at the Ninth Circuit Court of Appeals and its record of reversal by the Supreme Court. I just raised the issue that there may be thousands of cases that need to be reversed, but the Supreme Court doesn't have time to do that. I think they would be much more concerned about voting for and passing this split of the Ninth Circuit than they would attacking some of the judges who are up for nominations.

Mr. HATCH

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

Mr. HATCH. Mr. President, my amendment addresses a specific and serious problem for Americans repaying student loans. Many of our colleagues may not be aware of it, Mr. President, but there is a severe marriage penalty lurking in the deduction for student loan interest expense that Congress enacted in 1997. This marriage penalty arises because, when Congress established the deduction for student loan interest, we targeted it so that only taxpayers with incomes below a certain amount could use it. For single taxpayers, that income threshold is $40,000. For taxpayers with Adjusted Gross Income above $40,000 the deduction begins to phase out. The deduction is fully phased out over the next $15,000 of income, so that when a single taxpayer's income reaches $55,000, there is no deduction allowed. For married taxpayers filing a joint return, there is a different threshold--$60,000. This is where the deduction begins to phase out, and it is gone at an income level of $75,000. This is the heart of the problem, Mr. President. Because the threshold for married taxpayers filing a joint return is less than twice as high as the threshold for singles, there is a marriage penalty. Let me illustrate the problem with an example. Let's consider a couple from my home state. Dave and Joann met at Utah State University and married right after graduation last year. Dave is the assistant manager of a grocery store an earns $38,000 per year. Joann is a computer programmer making $40,000 annually. These are not high income people, Mr. President, although their income puts them in the 28 percent marginal tax bracket. Dave and Joann each borrowed to finance their education, and each has $2,000 in interest expense from their student loans. The full $2,000 interest expense would be fully deductible if they were single, saving them each $560 in taxes. However, simply because Dave and Joann are married, and their combined income exceeds $75,000, they lose the full $4,000 student loan interest deduction. Unfortunately, the $1,120 marriage penalty inherent in the student loan interest deduction is only the tip of the marriage penalty iceberg for Dave and Joann. This is only one of at least 66 marriage penalties that resides in the Internal Revenue Code. Not every one of these 66 marriage penalties affect every married couple in America, but many couples are hit with at least one, and often more than one, marriage penalty. In our example here, Dave and Joann are hit with two other marriage penalties. As you can see, the total amount of marriage penalty affecting Dave and Joann is a whopping $2,650. This means their tax burden is 27 percent higher than it would be if they were single, Mr. President! This is simply not fair. It is poor tax policy, it is poor education policy, and it is poor family policy. Taxpayers should not pay more in taxes just because they are married. The other marriage penalties affecting Dave and Joann stem from the fact that the standard deduction for married couples is less than twice the amount of the standard deduction of singles, and from a similar problem that exists in the tax rate schedules. These two marriage penalties are not the subject of this amendment. I will note, however, that H.R. 6, the marriage penalty alleviation bill passed by the House in early February, would correct most of this marriage penalty for Dave and Joann. I know that Chairman Roth plans to take up marriage penalty legislation in the Finance Committee in the next few weeks. I look forward to working with him to solve these other problems. The marriage penalty problem the House bill would not correct, however, is the one inherent in the student loan interest deduction. The solution to this marriage penalty is simple. This amendment merely increases the income threshold for joint returns to $80,000, twice the level of the single taxpayer threshold. The marriage tax penalty problem is a complex one. We are not going to solve it all at once. I am gratified to see the Congress focusing on this important family issue, and I hope we can see real progress on alleviating the problem this year. This amendment is a good place to start. Some might argue that this is relatively minor marriage penalty. And, compared with some of the other ones. maybe it is. However, it is not small to Dave and Joann and to the millions of young Americans who pay more in taxes simply because they have formed the basic unit of society--a family. This small step today will eliminate the marriage penalty that hurts married taxpayers who are repaying educational loans. Then, in a few weeks when the Finance Committee takes up broader marriage penalty legislation, we can address some of the other problems. The amendments (Nos. 2859 and 2824) were agreed to en bloc, as follows:

Mr. HATCH. Mr. President, I rise today in strong support of the Mack- Hatch amendment that is currently before the Senate. This is an important issue both as a matter of educational policy and as a matter of fairness in tax policy. I congratulate the Senator from Florida for joining me in bringing it up as a part of the debate on this bill. There has been a lot of discussion in recent months about the problem of the so-called marriage tax penalty. Actually, if we were to be totally accurate, we would talk about the marriage penalties. The American Institute of CPAs has found that the Internal Revenue Code contains at least 66 separate provisions that can cause a marriage penalty--66. Think about it. Many of our colleagues may not realize this, but at the same time we were supporting legislation to eliminate marriage penalties, we were busy creating new ones. This brings me to the purpose of our amendment. The bill we are debating today would expand the education savings account Congress created in the Taxpayer Relief Act of 1997. This is a great idea, and I fully support it. However, the provision creating the education savings account in 1997 contained a flaw--a marriage penalty. This penalty is found in the fact that the phaseout threshold for married couples found in joint returns is less than twice as high as the threshold for single taxpayers. The amendment before us would correct this problem by raising the threshold for married couples from the current level of $150,000 to $190,000, which is twice the $95,000 threshold for individuals. It is that simple. Some may argue that this is a trivial matter. Why are we taking up the Senate's valuable time on such a minor change. While to some this may not be the important tax change we should consider if this one problem is viewed by itself, this issue is much larger than that. First, let's start with the obvious. We are debating S. 1134 to provide incentives for American families to save for their children's education: tuition payments, books, tutoring, computers, and other things. The idea, of course, is to benefit children. The goal is to further their educational opportunities. But without the Mack-Hatch amendment, we discriminate against some two-parent families who wish to take advantage of an education savings account. In some cases, the allowable resources in the account available for their children's education would be greater if mom and dad merely divorced and set up separate accounts. That is not what we want in this country. Second, it is time we raise the consciousness of the Senate about how seemingly minor boilerplate provisions in tax bills can eventually harm taxpayers in big ways. I would venture a guess that one of the reasons we have 66 separate marriage penalties built into the Tax Code is that Congress simply copied over and over, year after year, the faulty language referring to returns filed by single taxpayers and married couples. Once enacted, of course, they spread like a computer virus. Later today, I plan to offer another amendment that would correct yet another marriage penalty we created in 1997, this time in the student loan interest deduction. I hope my colleagues will support Senator Mack and I on behalf of these amendments. These amendments represent a good start on finding and correcting some of these tax inequities that riddle the Internal Revenue Code. I am looking forward to working more on this issue when the Finance Committee takes up marriage penalty legislation in the next few weeks. I congratulate Senator Roth, chairman of the Finance Committee, for making meaningful relief in this area a high priority. In listening to my constituents talk about the issue of taxes, I continue to hear one thing over and over again. The No. 1 complaint I hear from Utahans even more than that of taxes being too high is that of the Internal Revenue Code's complexity and unfairness. In my view, few things in our jumbled up Tax Code are more unfair than the provisions that make taxpayers pay more just because they are married. Let's take this simple first step and eliminate this one marriage penalty by adopting this amendment. Then later, when I bring up my amendment on the student loan interest deduction marriage penalty, let's take on that one as well. Later this spring, we can do even more with the larger marriage penalty bill. We should fix all 66 of these marriage penalties, even if we have to do it one by one. Let's strike a blow for tax fairness. I urge the adoption of this amendment.

Mr. HATCH

Mr. HATCH. Mr. President, I rise today in strong support of the amendment offered by the Senator from Maine, and I thank her for her leadership in bringing this issue before the Senate at this time. Mr. President, no debate on tax incentives for education would be complete without a discussion of teachers and how they are taxed as professionals. In my view, the current law treatment is seriously deficient in this area. First, let me review the technical points. Like any other professional, elementary and secondary school teachers incur a number of expenses in order to keep themselves current in their fields of knowledge. These include subscriptions to journals and other periodicals. In addition, many teachers invest in their own development by taking courses to improve their knowledge or skills. Under current law, these expenses are deductible, as miscellaneous itemized deductions. However, there are two practical limitations that effectively make these expenses non-deductible for most teachers. The first limitation is that the total amount of a taxpayer's deductible miscellaneous expenses must exceed 2 percent of adjusted gross income before they begin to be deductible. The second hurdle is that the amount in excess of the 2 percent floor, if any, combined with all other deductions the taxpayer has, must exceed the standard deduction before any of them are deductible. Let's consider just how difficult these limitations can be, Mr. President. I will use the example of a fifth-year high school science teacher in Utah who I will call Robin Stewart. Robin is single and makes $35,000 per year. She incurred $840 of expenses last year for science periodicals and for a course she took over the summer to increase her knowledge of chemistry. Under current law, Robin's $840 expenditures are deductible, subject to the limitations I mentioned. The first limitation says that her expenses must exceed 2 percent of her income before they are deductible. Two percent of $35,000 is $700. Thus, only $140 of her $840 is deductible--that portion which exceeds $700. As a single taxpayer, Robin's standard deduction for 2000 is $4,400. Her total itemized deductions, including the $140 miscellaneous deduction, fall short of this threshold. Therefore, not even the $140 is deductible for Robin. What the first limitation did not block, the second one did. Unfortunately, Mr. President, this is the case for most of the school teachers in our nation. In 1997, the last year for which the Internal Revenue Service has statistics, only 29.9 percent of taxpayers were able to itemize their deductions. So even in the rare case where the 2 percent limitation does allow a significant deduction, chances are very good that it will not help the teacher because he or she cannot itemize. The amendment before us is a good step in the right direction. It would remove the first limitation--the 2 percent floor on miscellaneous itemized deductions. Ideally, I would like to see the second limitation removed as well and make these kinds of expenses deductible by teachers regardless of whether or not they itemize. I hope that my colleagues on the Finance Committee will take a close look at the idea of an above- the-line deduction for teachers. Mr. President, the second part of the amendment before us is also very important. It recognizes that many of our dedicated teachers incur personal expenses for materials for their classrooms. Under current law, these types of expenses are, once again, deductible, but only to the extent they exceed 2 percent of the taxpayer's adjusted gross income. Many Americans may be unaware that many teachers subsidize their schools out of their own pockets. It is not unusual for teachers to have to pay for copying extra worksheets or articles, purchasing art supplies, or providing tablets and pencils to some students who are without. Many teachers buy library books, educational games, and puzzles for their classes with their own money. Rather than treating these expenses the same as teacher development expenses, and exempting them from the 2 percent floor, this amendment goes one step further and grants a tax credit of up to $100 per taxpayer for materials the teacher supplies for his or her class. This means the teacher receives a dollar-for-dollar reduction in tax liability. Some people may argue that teachers don't have to do this--why should they get a special tax credit? The fact is that those teachers who love teaching and care about their students have been subsidizing their classrooms for years. They do it because our public schools frequently nickel-and-dime the classroom in order to concentrate resources on required big ticket items. And, Mr. President, there is one key difference between school teachers and other professionals that, in my mind, justifies this tax change. Teachers--unlike lawyers, accountants, physicians, or others who may take the existing deduction--are engaged in non-profit public service. This amendment gives proper recognition to the personal sacrifice that many of our teachers make, year after year, toward improving the education of our children. As in the other part of this amendment, Mr. President, this provision is not perfect. I would like to see this credit also extended to those parents in Utah and throughout the country who choose to teach their children at home. Their expenditures, which likely far exceed $100, also deserve the tax credit, and I hope the Finance Committee can look for ways in other legislation to extend such a credit to parents to teach at home. But, the Collins-Kyl-Coverdell-Hatch amendment is a good step toward recognizing the dedication of our elementary and secondary school teachers and in helping them to meet the costs of their profession. We say that we want our public school teachers to be the best. We say we want our children and grandchildren taught by teachers who are competent and up-to-date not only in the subject matter they are teaching, but in the pedagogy of teaching it. We say we want teachers who know how to exploit fully new learning technologies, including the Internet. We say we want teachers who can recognize the signs of struggling or troubled students. We say we want teachers who can inspire our kids. We say we want teachers who are willing to go the extra mile. Mr. President, this amendment, offered by Senator Collins, is not unlike an amendment I introduced myself. This amendment, like my own, is designed to get our tax policy in sync with our goals for education. This amendment will provide modest tax relief for teachers who, for too long, have been footing the bill for improving the quality of teaching by themselves. It is time we helped out. I urge the adoption of this amendment. I compliment my colleagues for the good work they are doing.

Mr. HATCH

Mr. HATCH. Mr. President, today I would like to offer congratulations to the University of Utah on the 150th anniversary of its founding. In 1850, just three years after the pioneers reached the dusty and desolate Salt Lake Valley, the General Assembly of the State of Deseret passed an ordinance to create the first university to be established west of the Missouri. Despite some stressful financial times, it persevered; and, in 1892, the territorial legislature changed its name to the University of Utah. The Utah pioneers began an institution that would serve as the intellectual and cultural cornerstone for the state of Utah and for the West. With its humble beginnings in a private home, the University of Utah has become the embodiment of the pioneering spirit that conceived it. The University of Utah--the ``U''--has led the way in a number of areas, including research, teaching, and public service. Academically, the University makes significant contributions in the West and in the nation. The Honors Program is the third oldest in the nation. The graduate school of Architecture has the Intermountain West's only program in historical preservation. The College of Humanities has the Intermountain West's only joint master of public administration in Middle East studies. Additionally, the University of Utah's work in health sciences, where the first artificial heart was developed, in supercomputing and computer modeling, and in cosmic-ray research, where the U is home to the one-of-a-kind ``Fly's Eye,'' has contributed significantly to the University's growing reputation both nationally and internationally. The University of Utah currently ranks in the first tier of American research institutions according to the Carnegie Foundation. Henry Eyring, a world renowned chemist and professor noted in 1946 that, ``the stature of the university would rise through advancements of science and technology.'' And so it has. The faculty and students representing all 50 states and 102 foreign countries have built the U into a premier research institution. A pioneer in computer graphics, David Evans, after studying electrical engineering at the University, became chair in 1965 of the fledgling department of computer science. He oversaw the education of individuals who went on to groundbreaking careers in computing including, Alan Kay, vice president of Disney Imagineering; Jim Clark, founder of Silicon Graphics, Inc.; John Warnock, co-founder of Adobe Systems; and, Edwin Catmull: co-founder of Pixar. The medical school, started in 1905, has made great strides in medicine that are recognized throughout the world. Dr. Philip Price, former chair of the Department of Surgery said, ``The essence of the pioneer spirit as I see it, is the courage to tackle an un-ideal situation, trying hard with faith and intelligence to build something ideal out of it. That's what I would like to see done, and have a part in.'' In 1946, the U.S. Public Health Service awarded its first grant to a medical school so that the University of Utah could study muscular dystrophy. The receipt of this first grant for medical research set the stage for the University's subsequent success in medical research. Dr. Willem Kolff began the division of Artificial Organs and the Institute for Biomedical Engineering in 1967. His pioneering work on both an artificial kidney and heart led to a number of medical breakthroughs, including the world's first artificial heart transplanted into Dr. Barney Clark in 1982. That was a great thrill for all of us from Utah. More recently, there have been a number of major leaps taken in genetic research at the Eccles Institute of Human Genetics. Scientists have found dozens of genes for human diseases including cancer, heart disease, neurological conditions, birth defects, and blindness. And, the Huntsman Cancer Institute is becoming an international leader in the discovery of new ways to diagnose, treat, cure, and prevent cancer. The University of Utah has also played a central role in the development of Utah in the arts and athletics. In 1948, the Utah Symphony was invited to make its home on the campus, establishing the University as home for various cultural events for the public. For the past decade, the Modern Dance Department ranks among the top three in North America along with the ballet program, which is the nation's first college ballet degree program. The University of Utah's skiing and women's gymnastics programs have each won ten national titles, and the Runnin' Utes basketball team made it to the NCAA national championship finals in 1998. The football team has made numerous bowl game appearances. Of course, to me, as an alumnus of BYU, the best thing to come out of the University of Utah was in 1875 when the University's Provo branch was split off to become the Brigham Young Academy and eventually Brigham Young University. It would be impossible for any Utahn not to at least mention this historic rivalry. It is difficult to do justice to the myriad of accomplishments of the University of Utah's faculty and alumni in this brief statement. Suffice it to say that, after 150 years, the University of Utah still draws on the courageous and adventurous spirit of Utah's pioneers. The achievements and ideas of the faculty and graduates have multiplied across the geographic and academic frontiers of our country. The University's proud heritage and traditions have established its values and lighted the path; but, without a doubt, the trail is still being blazed. I might add that as a young boy living in Pittsburgh, PA, wanting to support anything from Utah, I can remember the great University of Utah championship basketball teams with Arnie Ferrin, Vern Gardner, Wat Misaka, and others who were terrific athletes who made the University of Utah a household name in basketball during those years. Of course, they have been an inspiration to me ever since. In fact, it has been a thrill for me to meet some of those people, and especially become a friend of the great Arnie Ferrin who was the University of Utah's great All American during those years and later played professional basketball as well. Again, my congratulations to the students, alumni, faculty, and administrators of the University of Utah on reaching this significant milestone. It is a great university. I support it very strongly, and I think everyone in Utah does as well. I am grateful to be able to make this statement on its behalf. I yield the floor.

Mr. HATCH

Mr. HATCH. Mr. President, I rise today to introduce with my good friend from Vermont, the distinguished Ranking Minority Member of the Senate Judiciary Committee, Senator Leahy, the ``Anti-Tampering Act of 2000.'' In short, this bill prohibits tampering with product identification codes--a practice that threatens the health and safety of US consumers, frustrates legitimate forensic activities of law enforcement, and impairs manufacturers' ability to protect their distribution channels, thereby exposing them to significant product liability exposure. Let me take just a moment to explain the need for this bill. Manufacturers code their products in order to protect their consumers and to assist law enforcement in investigating consumer complaints, as well as in conducting recalls of tampered products. These codes assist the manufacturer and law enforcement in tracing goods back to a particular lot, batch or date of production. They include batch codes, expiration dates, lot numbers, and other information that one can typically see imprinted on the bottom or side of most products. Legitimate goods produced by manufacturers are obtained by ``illegitimate decoders'', frequently by fraud, theft or false pretenses. These decoders then decode and otherwise tamper with product labeling to avoid detection so that they may sell these ill-gotten goods to unauthorized points of sale. The frightening aspect of this activity, Mr. President, is that a substantial portion of the US-made goods sold by illegitimate decoders have been adulterated or otherwise tampered with after manufacture, and present health and safety risks to consumers. Incredible as it may seem, thieves routinely tamper with product identification codes on stolen goods; counterfeiters affix fake codes on gray market goods that are then mixed with counterfeits; and distributors who have broken their distribution contracts with manufacturers typically obliterate product identification codes. Because gray market activity is largely lawful in the US, the diverters' distribution channels have been used by professional thieves and counterfeiters to traffic in their illegal merchandise. There appears to be a connection between counterfeit and decoded imports, and anti-counterfeiting enforcement efforts will be frustrated unless greater controls are placed on the importation of such decoded products. Regrettably, gray market networks are increasingly being used for the distribution and sale of counterfeit goods. Distributors have been found to sell counterfeit goods--from baby shampoo to infant formula to cosmetics and fragrances--purchased through gray market channels. In short, Mr. President, goods are decoded to hide evidence of fraudulent, unlawful conduct and to traffic in stolen, counterfeit, misbranded, out-of-date and unlawfully diverted merchandise. Let me offer you a few examples of the significant health and safety risks presented by this activity. As noted by the International Formula Council, product identification codes are, without question, the single most important factor in a successful recall. In recent years, this link between product coding and consumer protection has become increasingly evident. Following the Tylenol poisonings of 1982, product coding enabled Johnson & Johnson to identify the tainted production lots and issue a nationwide recall of potentially dangerous products. Similarly, the manufacturers of automobiles, toys, food products and other consumer goods have consistently relied upon product coding to identify and recall goods that fail to meet consumer quality and safety standards. Last year, the FDA used product codes to quickly identify a shipment of contaminated strawberries that had caused an outbreak of hepatitis in Michigan schools. More recently, the Slim Fast Corporation relied on product codes to identify and recall 192,000 cans of its ready-to-drink diet shakes because, according to the New York Times (Apr. 18, 1999), some of the cans might have been filled with a diluted cleaning solution. In addition, this summer, a leading manufacturer of infant formula used its product codes to identify and recall 7,000 cases of infant formula after a labeling error resulted in distribution of infant formula cans that may have contained an adult nutritional supplement that could have been harmful to infants. (USA Today, June 9, 1999.) An undercover investigation by the Food and Drug Administration's Office of Criminal Investigation in New York involved wholesale purchases of expensive fertility drugs. Fraudulent code numbers appeared on the counterfeit packaging containing these injectible products. Although laboratory analysis indicated the presence of the active ingredient in these products, the FDA was not able to determine the place or conditions of their manufacture because of the absence of legitimate batch code data. Fraudulent product identification coding has even been used in schemes involving bulk food products such as metric tons of frozen shrimp. For instance, a Florida indictment charged an importer with criminal offenses involving the repeated ``washing, mixing and soaking'' of putrid and decomposed shrimp in a solution containing copper sulfate, chlorine, lemon juice and other chemicals to conceal the inferiority of the product. Central to this scheme was the ``re- coding'' of product lots as they were repeatedly rejected by buyers, chemically treated, and re-sold to others who did not know the products' history. In short, without product coding, the task of identifying and recalling defective goods becomes infinitely more difficult and often impossible, leaving consumers exposed to potential harm, illness and even death. According to the U.S. Consumer Product Safety Commission, there were 273 product recalls last year and, on average, one high profile recall each week. In addition to the health and safety risks presented by this conduct, Mr. President, there is an additional, equally significant public policy interest served by this bill: codes play a vital part in traditional law enforcement activities. They assist law enforcement in investigating criminal activity, and they further aid in tracking stolen goods. They play a critical role in certain criminal investigations, allowing law enforcement officers to pinpoint the location and in some cases--including the World Trade Center bombing-- the identity of the offender. In cases of stolen or tainted goods, product codes point to the source of the product and the site of the crime. Unfortunately, Mr. President, there is no single federal statute that adequately addresses the problem of product identification code tampering of all consumer products. Federal law only applies to a limited category of consumer products. Moreover, federal law only applies if the decoder or tamperer exhibits criminal intent to harm the consumer. It does not address the vast majority of decoding cases that could result in harm to the consumer, but do not involve the specific intent to harm the consumer. Moreover, violations of current federal law result in only a misdemeanor. By criminalizing tampering with product identification codes, we hope to send a clear message to the professional criminals: We value the lives and well being of Americans and will not tolerate this conduct any more on our soil. You, the professional criminal, will persist in this activity at your economic and personal peril. Under the bill, tampering with product codes of pharmaceuticals, over-the-counter medicines consumer products, health and beauty aids, and other goods will constitute a criminal offense. Criminalizing this conduct will result in strengthened law enforcement tools, greater consumer protections and greater security for manufacturers' products. Mr. President, I believe it would be instructive to identify what this bill does not do, as there has been some misinformation about this measure. The bill does not restrict, prohibit, criminalize or otherwise impair lawful, arms-length diversion activity. In short, Mr. Chairman, the bill does not affect the legality or illegality of the gray market. It simply prohibits tampering with product identification codes. Diverters can continue to engage in parallel importing to the same extent after passage of this measure as they have in the past. However, to be clear, Mr. Chairman, they must do so without obliterating the product identification codes or affixing fake codes on the goods. Moreover, unintentional acts of decoding or other activities associated with decoded products are not subject to criminal or civil action, because the bill provides for a knowledge standard and protection for innocent violators. Thus, the innocent store clerk who merely scans merchandise at the check out counter and unwittingly permits the sale of decoded merchandise need not worry. Nor should either the innocent trucker who transports this merchandise or the innocent distributor who engages in distributing this merchandise to the retailer have cause for concern. Others have expressed concern that enactment of the bill will result in the end of discount retailers and discount prices. It is difficult to understand this objection. I cannot conceive why discounting would require altering the expiration dates or the source identifiers of the goods, unless all discounts are illegally diverted or are product that should be recalled. But risking the health and safety of American consumers, or selling them inferior or fake goods to keep alive a certain brand of ``discounting'' does not seem like much of a bargain to me. Discounts are routinely offered when inventories build up or styles change. Manufacturers and retailers will continue to discount when this bill is enacted. But consumers will have greater assurance that the discount they are receiving is not coming with an offsetting risk that the product is contaminated or defective. Finally, Mr. President, some argue that the bill's application to all products is unnecessarily broad. The bill's several important public policy goals require that it apply to all products. Let me explain why. The bill is intended to ensure effective and targeted product recalls, to enhance law enforcement investigations, and to protect American consumers and the legitimate businesses who serve them from the depredations of illegitimate diverters. Product recalls apply to all products and law enforcement investigations implicate all products. For instance, the codes on the batteries in the Olympic Park bombing in Atlanta, Georgia were used to exonerate the security guard then under suspicion in that case, Richard Jewell. The code on the microprocessor chip on the bomb in the Pan Am air crash linked the bombing to terrorists. And even on a more pedestrian level, the code on a crowbar in a recent New York burglary led police to the criminal. So, Mr. President, I am pleased to introduce this important measure today. It enjoys the strong backing of the Coalition Against Product Tampering (CAPT). The CAPT is a coalition of private sector companies, consumer groups, unions and law enforcement agencies which are concerned about product decoding and product tampering and the role these activities play in fueling and supporting other criminal enterprises, including money laundering, organized retail theft, and counterfeiting. I would ask unanimous consent, Mr. President, that the CAPT's membership list be included in the record after my remarks. I have received numerous members of this group expressing their support for the legislation introduced today. In conclusion, Mr. President, law enforcement, consumer groups, unions, and others agree with me that intentional decoding of products threatens the health and safety of American consumers. According to the National Association of Manufacturers, manufacturers cannot conceive of a single legitimate reason to decode products. Nor can I. The ``Anti- Tampering Act of 2000'' I am introducing today is a narrowly tailored approach to this problem and should be enacted. I ask unanimous consent that the text of the bill and a section-by- section analysis of the legislation appear in the Record.