Orrin Hatch

Mr. HATCH

Mr. HATCH. May I have 1 more minute to finish my remarks?

Mr. HATCH

Mr. HATCH. Absolutely. I am as concerned about the threat of drugs and gangs coming into our rural communities as is the Senator from Vermont, and I believe strongly that the Boys and Girls Clubs we seek to establish are a big part of the answer to these threats.

Mr. HATCH. I yield back the remainder of my time as well as Senator Leahy's time, I am authorized to say.

Mr. HATCH. Mr. President, I am prepared to yield back the remainder of my time. Would the Senator from Delaware yield back the remainder of his time?

Mr. HATCH. I move to reconsider the vote.

Mr. HATCH. Absolutely. The original language passed last year expressly included rural areas, but this amendment is intended to make our intent clearer that not only can rural areas as well as urban qualify as distressed areas, but also that clubs ought be expanded into rural areas and smaller communities where needed and, in particular, into rural areas such as those in my friend's State of Vermont, my State of Utah, and other States with few Boys and Girls Clubs. I agree with the Senator that our call for 1,000 new clubs by the year 2001 should include attention to expanding opportunities for young people in our rural areas and smaller communities.

Mr. HATCH. That is correct. The bill will change the law to permit Boys and Girls Clubs to be expanded where needed, and certainly a club in a rural area could be needed, and make a significant difference to the young people in that area.

Mr. HATCH. I thank my colleague for his kind remarks. I think he has summed it up very, very well. So I will not repeat what he has said. I agree with him. I have to say this is one of the best programs for youth that we could do. It is the right thing to do, and I urge all our colleagues to support it.

Mr. HATCH. Mr. President, I rise today to urge my colleagues to support S. 476, legislation to further the commitment of the Republican Congress to support the expansion of the Boys and Girls Clubs of America, one of the best examples of proven youth crime prevention. This is not a partisan initiative, however. I am pleased to have the company of a bipartisan group of Senators, including Senator Biden, the ranking Democrat on the Youth Violence Subcommittee, Senator Stevens, the chairman of the Senate Appropriations Committee, Senator Gregg, the chairman of the Commerce, Justice, State Appropriations Subcommittee, Senator Kohl, who serves on the Judiciary Committee, and, of course, Senator Thurmond, who has served as a distinguished chairman of the Judiciary Committee. Mr. President, the volunteer spirit is alive and well in America. The Presidents' summit on voluntarism, held recently in Philadelphia, focused national attention on this aspect of the American people's generous spirit. Yet, the effects of the legislation we are debating today will be felt in neighborhoods across the country long after the spotlight is gone, and long after the speeches are forgotten. Our legislation addresses our continuing initiative to ensure that, with Federal seed money, the Boys and Girls Clubs of America are able to expand to serve an additional 1 million young people through at least 2,500 clubs by the year 2000. The dedication of all of these members demonstrates our commitment to both authorize and fund this effort. Last year, in a bipartisan effort, the Republican Congress enacted legislation I authored to authorize $100 million in Federal seed money over 5 years to establish and expand Boys and Girls Clubs in public housing and distressed areas throughout our country. With the help of the Appropriations Committee, we have fully funded this initiative. The bill we are debating today streamlines the application process for these funds, and permits a small amount of the funds to be used to establish a role model speakers' program to encourage and motivate young people nationwide. It is important to note that what we are providing is seed money for the construction and expansion of clubs to serve our young people. This is bricks and mortar money to open clubs. After they are opened, they will operate without any significant Federal funds. In my view, this is a model for the proper role of the Federal Government in crime prevention. The days are over when we can afford huge, never-ending, federally run programs. According to a GAO report last year, over the past 30 years, Congress has created 131 separate Federal programs, administered by 16 different agencies, to serve delinquent and at-risk youth. These programs cost $4 billion in fiscal year 1995. Yet we have not made significant progress in keeping our young people away from crime and drugs. What we can and must afford is short-term, solid support for proven private sector programs--like the Boys and Girls Clubs--that really do make a difference. Boys and Girls Clubs are among the most effective nationwide programs to assist youth to grow into honest, caring, involved, and law-abiding adults. We know that Boys and Girls Clubs work. Researchers at Columbia University found that public housing developments in which there was an active Boys and Girls Club had a 25-percent reduction in the presence of crack cocaine, a 22-percent reduction in overall drug activity, and a 13 percent reduction in juvenile crime. Members of Boys and Girls Clubs also do better in school, are less attracted to gangs, and feel better about themselves. There are many distinguished alumni of Boys and Girls Clubs, including President Clinton and other role models such as actor Denzel Washington, basketball superstar Michael Jordan, and San Francisco 49ers quarterback Steve Young. More important, however, are the uncelebrated success stories--the miracles performed by Boys and Girls Clubs every day. At a Judiciary Committee hearing on March 19, we heard from one of these miracles. Amador Guzman, from my State of Utah, told us how he believes the club in his neighborhood saved his life, by keeping him from gangs, drugs, and violence. The reason Boys and Girls Clubs work--and the reason Congress wants to do more for them--is because they are locally run and depend primarily on community involvement for their success. Never have our youth had a greater need for the positive influence of Boys and Girls Clubs, and never has the work of the Clubs been more critical. Our young people are being assaulted from all sides with destructive messages. For instance, drug use is on the rise. Recent statistics reconfirm that drugs are ensnaring young people as never before. Overall drug use by youth ages 12 to 17 rose 105 percent between 1992 and 1995, and 33 percent between 1994 and 1995. 10.9 percent of our young people now use drugs on a monthly basis, and monthly use of marijuana is up 37 percent, monthly use of LSD is up 54 percent, and monthly cocaine use by youth is up 166 percent between 1994 and 1995. Our young people are also being assaulted by gangs. By some estimates, there are more than 3,875 youth gangs, with 200,000 members, in the Nation's 79 largest cities, and the numbers are going up. Even my State of Utah has not been immune from this scourge. In Salt Lake City, since 1992, the number of identified gangs has increased 55 percent, from 185 to 288. The number of gang members has increased 146 percent, from 1,438 to 3,545; and the number of gang-related crimes has increased a staggering 279 percent, from 1,741 in 1992 to 6,611 in 1996. Shockingly, 208 of these involved drive-by shootings. Every day, our young people are being bombarded with cultural messages in music, movies, and television that undermine the development of core values of citizenship. Popular culture and the media glorify drug use, meaningless violence, and sex without commitment. The importance of Boys and Girls Clubs in fighting drug abuse, gang recruitment, and moral poverty cannot be overstated. The Clubs across the country are a bulwark for our young people and deserve all the support we can give. Indeed, Federal efforts are already paying off. Using over $15 million in seed money appropriated for fiscal year 1996, the Boys and Girls Clubs of America opened 208 new clubs in 1996. These clubs are providing positive places of hope, safety, learning and encouragement for about 180,000 more kids today than in 1995. In my State of Utah, these funds have helped keep an additional 6,573 kids away gangs, drugs, and crime. The $20 million appropriated for fiscal year 1997 is expected to result in another 200 clubs and 200,000 more kids involved in clubs. We need now to redouble our efforts. The legislation we introduce today demonstrates our commitment to do that. It will not, and cannot, solve our juvenile crime problem. We will be bringing other legislation to the floor that will address, in a comprehensive manner, the urgent problems of juvenile crime. S. 476, is, however, an important first step in that endeavor, aimed at stopping youth crime before it starts. Mr. President, let me just add, this is a terrific bill. It is a bipartisan initiative. I want to compliment my colleague from Delaware for the hard work he has done through the years on Boys and Girls Clubs, and he certainly deserves a lot of the credit for the bill. We have worked together, and we are going to continue to do so. I hope that the Congress will pass this in an expeditious fashion to continue to use one of the best ways of stopping crime and helping kids that our society has ever known.

Mr. HATCH. Mr. President, I ask unanimous consent that the Senate now proceed to the consideration of Calendar No. 44, S. 476, regarding the Boys and Girls Clubs of America. I further ask unanimous consent that there be 20 minutes under the control of Senator Hatch, 10 minutes under the control of Senator Biden, and 10 minutes under control of Senator Leahy, and no amendments be in order to the bill; and, finally, following the expiration or yielding back of the time, the bill be read a third time with no other intervening action or debate.

Mr. HATCH

Mr. HATCH. Mr. President, I rise today to speak in support of H.R. 1122, the Partial Birth Abortion Ban Act of 1997. I understand that many people on both sides of this issue have very strongly held beliefs. I respect those whose views differ from my own. And I condemn, as I know every other Member of this body does, the use of violence or any other illegal method to express any point of view on this issue. Unfortunately, Mr. President, it ought to be noted the expression of points of view on the issue of partial-birth abortion has been marked by half-truths and the knowing or reckless deception of the American people. Let us be very clear about what is at issue in this legislation. Despite the rhetoric of the bill's more extreme opponents, it is not about the right of a woman who so chooses to have an abortion. H.R. 1122 does not address whether all abortions after a certain week of pregnancy should be banned, nor whether late-term abortions should be permitted only in certain circumstances. The Partial-Birth Abortion Ban Act of 1997 bans one, and only one, specific abortion procedure. During a joint hearing of the Senate Judiciary Committee and the House Judiciary Subcommittee on the Constitution on partial birth abortions, held March 11, 1997, Dr. Curtis Cook, a board-certified obstetrician/ gynecologist and a subspecialist in maternal-fetal medicine, also known as high risk obstetrics, described the partial-birth abortion procedure as follows: An instrument is then inserted into the uterus to grasp the leg of her living baby and drag it down into the cervix and into the vagina. The baby is then delivered up to the level of the after-coming head, before grasping the baby's chest and stabilizing the skull. The base of the skull is then punctured with a sharp instrument, and a suction instrument is then [placed into the hole] after it has been enlarged. The brain contents are then sucked out, thereby killing the fetus and collapsing the skull, allowing the infant to thereby deliver. Only this inhumane procedure, which our colleague from New York, Senator Moynihan, has described as ``close to infanticide,'' would be prohibited under this legislation. The record in support of this legislation is long. At the March 1997 Senate-House joint hearing, we heard from 10 witnesses, including representatives of the major organizations on both sides of this issue and a medical doctor who specializes in maternal-fetal medicine. In November 1995, the Judiciary Committee held a comprehensive, 6\1/2\- hour hearing on the subject of partial-birth abortions. The committee heard from a total of 12 witnesses presenting a variety of perspectives on this issue, including a registered nurse who had worked as a temporary nurse for 3 days in the clinic of a doctor who performs this procedure and who testified as to her personal experience in observing the procedure, from four ob-gyn doctors, from an anesthesiologist, from an ethicist, from three women who had personal experience either with having or declining to have a late-term abortion, and from two law professors who discussed constitutional and legal issues raised by this legislation. I find it difficult to comprehend how any reasonable person could examine the mountain of evidence and continue to defend the partial- birth abortion procedure. The indefensibility of this procedure is so evident, even to those who oppose this legislation, that, to date, few have tried to defend partial-birth abortions. Instead, abortion advocates embarked on what became a pattern of dissemblance and deception intended to make this procedure appear less barbaric and thus more palatable to the American people. Even worse, opponents of the bill not only misrepresented the partial-birth abortion procedure--which is bad enough--but also spread potentially life-threatening misinformation concerning the effects of anesthesia on the fetus of a pregnant woman that could prove catastrophic to women's health. By falsely claiming that anesthesia kills the fetus, opponents spread misinformation that could deter pregnant women who might desperately need surgery from undergoing surgery for fear that anesthesia could kill or brain-damage their unborn child. In a June 23, 1995 submission to the House Judiciary Constitution Subcommittee, the late Dr. James McMahon, one of two doctors who had, at the time, admitted performing partial-birth abortions, wrote that anesthesia given to the mother during the procedure caused fetal demise. In a so-called fact sheet circulated to Members of the House, Dr. Mary Campbell, medical director of Planned Parenthood who testified at the Judiciary Committee hearing, wrote: ``The fetus dies of an overdose of anesthesia given to the mother intravenously . . . [The anesthesia] induces brain death in a fetus in a matter of minutes. Fetal demise therefore occurs at the beginning of the procedure while the fetus is still in the womb.'' This claim was picked up and reported by the media, as in a November 5, 1995 editorial in USA Today which stated, ``The fetus dies from an overdose of anesthesia given to its mother.'' When Senator Abraham referred to that statement during the medical panel at the 1995 Judiciary Committee hearing, the president of the American Society of Anesthesiologists, Dr. Norig Ellison, flatly responded, ``There is absolutely no basis in scientific fact for that statement.'' The American Society of Anesthesiologists had sought the opportunity to set the record straight and, although they did not take a position on the partial-birth abortion ban, to their credit they came forward out of concern for this harmful misinformation. The March 1997 Senate-House hearing, appropriately entitled ``Partial Birth Abortion: The Truth,'' documented how the leaders of major pro- abortion groups repeated, over and over again, their false mantra that partial-birth abortions were extremely rare and performed only in exceptional circumstances. These charts contain a sampling of such statements. On this first chart, we have statements from the National Abortion and Reproductive Rights Action League, including one by Kate Michaelman, dated December 8, 1995, in which she stated ``These are rare procedures, performed under only the most compelling circumstances of life endangerment. . . .'' The next chart contains similar statements from Planned Parenthood of America, typified by a November 1, 1995 Planned Parenthood press release which states ``The procedure . . . is extremely rare and done only in cases when the woman's life is in danger or in cases of extreme fetal abnormality.'' As recently as February 25, 1997, the National Abortion Federation was spreading the false message, via its Internet web page, that ``[T]his particular procedure is used only in about 500 cases per year, generally after 20 weeks of pregnancy, and most often where there is a severe fetal anomaly or maternal health problems detected late in pregnancy.'' For a time, the pro-abortion lobby's campaign of misinformation, aided by a media which, as was demonstrated at the March 1997 hearing, all too often passively accepted false or inaccurate information from pro-abortion sources and reported it, unexamined, as news, succeeded in misleading the American people and their elected representatives about the horrible reality of partial-birth abortion. How many times during the Senate debate on this issue in the last Congress did we hear that such procedures were extremely rare and performed only to save the life of the mother in cases of severe fetal abnormalities? One of the greatest strengths of our free society is that the truth usually manages to emerge into the light. And so it is with partial- birth abortions. The recent admissions by Ron Fitzsimmons, executive director of the National Coalition of Abortion Providers, as reported in the American Medical Association's weekly newspaper, American Medical News, dated March 3, 1997, have finally broken through the abortion extremists' smokescreen of deception and confirmed what many already knew to be true, that Fitzsimmons, like others, had ``lied through my teeth'' when he said the partial-birth abortion procedure was used rarely and only on women whose lives were in danger or whose fetuses were damaged. As he himself admits, ``I just went out there and spouted the party line.'' The terrible truth is that this grisly procedure is, according to Fitzsimmons, used as many as three or four thousand times a year, with the vast majority of such abortions performed in the 20-plus week range on healthy fetuses and healthy mothers. As Fitzsimmons put it: ``You know they're primarily done on healthy women and healthy fetuses and it makes you feel like a dirty little abortionist with a dirty little secret.'' The truth is that partial-birth abortions are being performed on an elective basis, where the abortion is being performed for non-health related reasons on healthy fetuses and healthy mothers, and even though there are equally safe alternative abortion procedures available. As Congress has considered this issue, and, in particular, as more and more members of the medical community have spoken out with respect to partial-birth abortion, it has become abundantly clear that there is no medical necessity or justification for the use of this inhumane procedure to protect either the life or the health of the mother. Indeed, partial-birth abortion can be harmful to a woman's health. The absence of any medical justification for partial-birth abortion is now well-documented in the legislative records of the 104th and 105th Congresses. Several of my colleagues will discuss this particular issue in greater detail. Let me just quote former Surgeon General C. Everett Koop, who said in an interview in the American Medical News, that ``in no way can I twist my mind to see that the late-term abortion described--you know, partial birth and then destruction of the unborn child before the head is born--is a medical necessity for the mother. It certainly can't be a necessity for the baby. So I am opposed to . . . partial-birth abortions.'' In addition, a group of over 400 obstetrician-gynecologists and maternal fetal specialists have unequivocally stated that ``partial- birth abortion is never medically necessary to protect a mother's health or future fertility.'' In fact, the opposite is true: The procedure ``can pose a significant threat to both her immediate health and future fertility.'' Let me address one important aspect of the debate over the Partial- Birth Abortion Ban Act; the argument raised by opponents of this bill that it would violate the right of women to obtain abortions and is therefore unconstitutional under Roe versus Wade. The constitutional arguments raised in opposition to the Partial- Birth Abortion Ban Act reflect a fundamental misunderstanding of constitutional principles and of the Supreme Court's abortion jurisprudence. This is not only my view, but the view of numerous respected constitutional scholars at our Nation's finest law schools, including Douglas Kmiec of the Notre Dame Law School, Michael McConnell of the University of Utah College of Law, and of other authorities on constitutional law, such as William Barr, former Attorney General of the United States. Congress can constitutionally, and should morally, prohibit the particular, inhumane abortion procedure addressed by this legislation. Banning partial-birth abortions does not violate the Supreme Court's holding in Roe versus Wade, or any of the Court's other abortion decisions. I differ strongly with the Court's ruling in Roe, and believe the jurisprudence willed by the Court was fundamentally flawed. Nevertheless, I recognize that Roe is the law, and that we should endeavor to craft legislation that is consistent with its progeny. While the Court in Roe did hold that the word ``person,'' as used in the 14th amendment, does not include the ``unborn,'' it has never addressed the constitutional status of those who are in the process of ``being born,'' and there is no controlling legal authority on this precise issue. Indeed, the Supreme Court specifically noted in its decision that the plaintiffs in Roe did not challenge the constitutionality of the Texas statute which prohibited killing of a child during the birth process. The child involved in a partial-birth abortion is unquestionably one in the process of being born. The statutory definition of partial-birth abortion contained in H.R. 1122 is clear and precise: ``the term partial-birth abortion means an abortion in which the person performing the abortion partially vaginally delivers a living fetus before killing the fetus and completing the delivery.'' Because of the timing in the birth process at which this particular type of abortion is performed, when the fetus is literally just inches away from birth, these fetuses may actually qualify as persons under the Constitution as interpreted by the Court in Roe and its progeny, entitled to all of the protections of law that all other American citizens enjoy. The Supreme Court's decision in Roe makes clear that the Court did not even consider--let alone decide--whether partial- birth abortion could be prohibited. Congress is, therefore, free to address and decide this issue on its merits, and to pass a statute protecting such partially born children. Even if one believes that a partially born child is not a person under the 14th amendment, Supreme Court jurisprudence on abortion, principally articulated in Planned Parenthood of Southeastern Pennsylvania versus Casey, fully permits Congress to ban partial-birth abortions. While the Supreme Court in Roe versus Wade established a right for a woman to choose to have an abortion, the Court explicitly rejected the argument that the right to an abortion is absolute, and that a woman is entitled to terminate her pregnancy at whatever time, in whatever way, and for whatever reason she alone chooses. In Planned Parenthood versus Casey, the Court established a bifurcated approach to determine whether an abortion statute is constitutional, drawing a line at fetal viability. In reviewing a statute regulating abortion, a court must first determine whether the statute imposes an undue burden on the mother's right to choose to have an abortion. If the statute does not impose an undue burden on the mother, the court must then determine whether the statute reasonably relates to a legitimate governmental purpose. Once the fetus is viable, the Government can prohibit abortion. Under Casey, pre-viability regulation of abortion is constitutional so long as it does not constitute an undue burden on the abortion liberty. The essence of the undue burden test is whether the law, on its face, places a substantial obstacle on the woman's liberty interest that effectively deprives her of the right to make the ultimate decision of whether or not to have an abortion. Writing for the Court, Justice O'Connor wrote: A finding of an undue burden is a shorthand for the conclusion that a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus. . . . What is at stake is the woman's right to make the ultimate decision, not a right to be insulated from all others in doing so. . . .'' A prohibition on partial-birth abortions would not unduly burden a woman's right to have an abortion even in pre-viability cases. Just as the right to have an abortion first recognized in Roe versus Wade did not guarantee a right to ``abortion on demand,'' so, too, the undue burden test adopted in Casey does not guarantee an absolute, unrestricted right to have an abortion at the request of a woman under any and all circumstances. H.R. 1122's ban on partial-birth abortions clearly passes muster under the Casey undue burden standard. The record before Congress establishes that there are several safe, standard abortion techniques for providing abortions other than the partial-birth procedure. Congress's fact finding is entitled to considerable respect and deference from the courts. H.R. 1122 does not prevent a woman from having an abortion, nor does it force a woman to undergo an unacceptably dangerous or painful medical procedure. H.R. 1122 merely bars a physician from performing an abortion in one particular manner. It has neither the purpose nor effect of prohibiting or restricting abortions other than those performed by the partial-birth procedure, and leaves in place alternative methods of abortion. It thus would not constitute an undue burden on a woman's right to choose to have an abortion. Since banning partial-birth abortions does not place an undue burden on a mother's right to choose to have an abortion, H.R. 1122 will be upheld as constitutional if it is reasonably related to a legitimate government interest. The Supreme Court has recognized many legitimate-- and even compelling--interests that may justify abortion statutes such as this. In Roe itself, the Court acknowledged the government's legitimate interest in safeguarding health, maintaining medical standards and in protecting potential life. The Court has also recognized as legitimate interests: protecting immature minors, promoting general health, promoting family integrity, and encouraging childbirth over abortion. In addition, this act serves the legitimate government interest of protecting human life, that of the child who is otherwise killed after being partially delivered from his mother's womb. Partial-birth abortion would be criminal infanticide but for a mere three inches. Banning this procedure would protect children from being killed during the delivery process. The act also serves the interests of protecting the dignity of human life and preventing cruel and inhumane treatment. The partial-birth procedure is a particularly heinous method of abortion, one that inflicts excruciating pain on the child. No one would question a statute prohibiting the treatment of animals in such a manner. In fact, we have laws and regulations preventing harsh and painful treatment of laboratory animals in government research projects. Surely the government has a legitimate interest in extending at least the same level of protection to living children in their last seconds before birth. Mr. President, when Ron Fitzsimmons finally came forward to confirm the truth about the terrible procedure called partial-birth abortion, there was one more thing he said which bears remembering. He reminded us that women who enter abortion clinics do so to kill their unborn children. He said that abortion is ``a form of killing . . . You're ending a life.'' And that, Mr. President, is the ultimate truth which should be remembered by each Senator, and by each American, during this debate. We are deciding whether this nation will continue to permit partially born children, children just three inches away from life, thousands of children each and every year, mainly healthy children from healthy mothers, to be killed in a particularly painful, dangerous, inhumane and medically unjustified and unnecessary manner. We now know the truth about partial-birth abortions. The question is whether we will have the courage to do what I believe each member of the Senate knows, in his or her heart, to be the right, the moral, thing. With respect to this one terrible and unnecessary procedure, let us finally say, as a nation, enough. Here, on the edge of infanticide, is the line that we will not cross. I urge my colleagues to vote to pass H.R. 1122.

Mr. HATCH

Mr. HATCH. Mr. President, I ask unanimous consent that there now be period for the transaction of morning business with Senators permitted to speak up to 10 minutes each, except for the Senator from Pennsylvania, Senator Santorum.

Mr. HATCH

Mr. HATCH. Mr. President, I am pleased to support the reauthorization of the Individuals With Disabilities Education Act [IDEA]. For over 20 years, IDEA has been assisting children with disabilities overcome obstacles and become successful students who go on to become productive citizens. I commend the efforts of Chairman Jeffords, Senator Harkin, and Senator Frist. The Labor and Human Resources Committee has crafted a bill which is the product of hours and hours of consultation and discussion on both a bipartisan and bicameral basis. I also understand that Majority Leader Lott has taken a special interest in this bill as well, and I appreciate his leadership in the effort to enact this legislation. I have personally been assisted throughout this process by my Utah Advisory Committee on Disability Policy, and specifically by Dr. Steve Kukic, director of the Utah State Office of Education's Services for Students At Risk. Early on in this process, Dr. Kukic presented testimony to the Senate Labor and Human Resources Committee and identified what I believe is a key factor in this ultimately successful reauthorization which is a balanced system of accountability. Crucial to the success of IDEA is a framework where parents, advocates, school administrators and educators all work together to ensure that children are appropriately served. I appreciate that parents, advocates, school administrators, and educators may have different and strongly held opinions about how to accomplish the goal of delivering educational services to all children, particularly with regard to disciplinary actions and attorneys fees. I believe that central to the intention of this reauthorization was the attainment of balance between the objective of these interested parties. I also believe that this reauthorization, by and large, achieves this balance. I concur with several of the points raised by Senator Gregg, particularly the notion that if the Federal Government fulfilled its commitment to funding IDEA at an appropriate amount, then resources would be available on the state level to fund projects deemed necessary by the State. However, as has often been stated in the Senate, we should not allow the perfect to become the enemy of the good. It is vital that we move ahead with the reauthorization of IDEA. This program makes a tremendous difference in the lives of children with disabilities. I again want to commend all senators who participated in bringing this legislation to the floor. And, I would also like to single out a couple of staff members for their dedication to this goal. Pat Morrissey with Senator Jeffords and Robert Silverstein with Senator Harkin deserve special kudos for hanging in there for the duration. I am pleased that both the Senate and House of Representatives have ensured that the services provided under IDEA will continue, and I am pleased to vote in support of final passage. I urge the President to sign it promptly.

Mr. HATCH

Mr. HATCH. Mr. President last Friday, May 9, was ``Family Child Care Provider Appreciation Day'' in Utah and perhaps in other States as well. It is fitting to pay tribute to family-based child care providers who are an essential component of our child care system, both in Utah and throughout the United States. Family Child Care Providers are self-employed business people caring for up to six children at a time in their own homes for as much as 50 hours per week. Utah has over 2,000 family child care homes which service about half of the children in child care. Currently, it is estimated that 65 percent of mothers with children under 5 work outside the home, so the need certainly exists for a variety of child care options. Child care provided in individual family homes is one such option. Some parents for a variety of reasons prefer home environments for their children. Debbie, a child care provider in West Valley City, UT, watched a 2-year-old who was on a feeding tube. It is often very difficult to find care for sick or disabled children; but, in the flexible setting of her home, Debbie was able to provide the personal attention and care needed, making this particular child's experience as positive as possible. Vicki is a family child care provider in Cedar City, UT. She has provided help for parents who are trying to rebuild their lives. In one case, she provided care for a little girl while her father was in jail and her mother was working, but not earning a lot. Vicki says this family is doing better now. The father is out of jail and holding down a job. Vicki is still caring for their son while his mother works. Vicki says she likes to help families to get off of welfare and to build a better future. Family child care providers help families like these to achieve the American Dream. Family child care not only helps parents in the work force with peace of mind, but it also provides a supplemental income for mothers who want to be home with their own children. But do not confuse family child care providers with babysitters. Family care providers in Utah follow the highest of standards; they renew their licences every year by taking 12 credit hours of classes and updating certification in both CPR and first aid on a yearly basis. Utah has over 2,000 family child care homes which service about half of the children in child care. These statistics as well as the level of professionalism in which family child care providers operate is very important when it comes to quality care for our children. The future of our country depends on the quality of the early childhood experiences provided to young children today. Family child care providers provide important choices for parents who must work. As a strong advocate for putting our children first, I am pleased to honor these outstanding citizens in our communities who are making such a difference. I am happy to join in recognizing their achievements as well as their importance as part of our child care system.

Mr. HATCH

Mr. HATCH. Mr. President, I thank my colleague from Alaska for the excellent remarks he has made. He has summarized this as well as anyone could. He is an expert in this area. And I compliment my colleague from Utah for the work he is doing in this area. He is a great leader in this area. I personally appreciate the leadership that he has provided. He will show through descriptive evidence some of the problems that we have. Let me just say this: I also want to thank Senator Stevens, the senior Senator from Alaska. Both he and Senator Murkowski have provided our colleagues with a good overview of where the situation now stands, why the language in the supplemental appropriations bill is necessary, and why Senators should oppose the amendment of our good friend and colleague, Senator Bumpers. I want to commend Senators Murkowski and Stevens for their leadership on this matter. They know and understand the issue better than anyone else in this body. When it comes to preserving rights-of-way over public lands for State and local governments, there are no better advocates than the two of them, and certainly the senior Senator from Alaska, who himself served in the Interior Department. I am pleased to join with them today, and I thank them on behalf of the citizens of my State for leading this effort. For several years now the Department of Interior and the U.S. Congress have been at odds over that Department's effort regarding vested property rights essential to states and local governments throughout the west. On at least three occasions, Congress has blocked promulgation of Interior Department regulations intended to regulate retroactively the terms and conditions of the establishment of certain highway rights-of-way vested between the middle of the last century and 1976. As Senator Murkowski indicated, the Department of Interior, frustrated by Congress, is now attempting to do indirectly that which it cannot do directly. The Department is attempting to implement the blocked regulations under the guise of a new policy guidance issued on January 22 of this year. This guidance promotes a concept of Federal law which preempts State law, in spite of the fact that Federal courts have found State property laws applicable to issues such as vesting and scope of the right-of-way as a matter of Federal law. What is at stake here for those of us in the West is the preservation of what amounts to the primary transportation system and infrastructure of many rural cities and towns. The rights-of-way in question are found in the form of dirt roads, cart paths, small log bridges over streams or ravines, and other thoroughfares and ways whose development and use was originally authorized in 1866 during the homesteading activities that led to the establishment of western communities. They have been created over time and by necessity. In many cases, these roads are the only routes to farms and ranches; they provide necessary access for school buses, emergency vehicles, and mail delivery. These highways-- and we are obviously not using the term ``highway'' in the modern sense--traverse Federal lands, which in Utah comprises nearly 70 percent of Utah's total acreage, and they have been an integral part of the rural American landscape for over a hundred years. Congress created these rights-of-way in 1866; Secretary Babbitt is now attempting to eliminate, if not devalue, them in 1997. Let me set forth for my colleagues, in as brief a form as possible, the black letter principles applicable to this issue and why the disposition of this matter is so critical to those of us representing public lands States. As has been stated, Revised Statutes 2477 states, in its entirety: Sec. 8. And be it further enacted, That the right of way for the construction of highways over public lands, not reserved for public uses, is hereby granted. (Sec. 8 of the Act of July 26, 1866, 14 Stat. 253, later codified at 43 U.S.C. Sec. 932, repealed October 21, 1976.) In 1976, Congress adopted the Federal Land Policy and Management Act of 1976 (FLPMA) that repealed these 26 words known as R.S. 2477. At the same time, Congress included language protecting these valid existing rights, thus making the actions of the Department of Interior after passage of FLPMA subject to those rights. FLPMA explicitly states this: Nothing in this Act, or in any amendment made by this Act, shall be construed as terminating any valid lease, permit, patent, right-of-way, or other land use right or authorization existing on the date of approval of this act * * * All actions by the Secretary concerned under this Act shall be subject to valid existing rights. (FLPMA Sec. Sec. 701 (a) and (h), 43 U.S.C. Sec. 1701 notes (a) and (h).) From 1938 until the repeal of R.S. 2477 in 1976 by FLPMA, regulations published by the Department of Interior made it clear that the executive branch had no role to play in determining or regulating the validity or scope of R.S. 2477 rights-of-way. The regulations explicitly stated that: No application should be filed under R.S. 2477, as no action on the part of the Government is necessary. 43 C.F.R. Sec. 2822.1-1 (1972, emphasis added). They further provided that: Grants of rights-of-way referred to in the preceding section become effective upon the construction or establishment of highways, in accordance with the State laws, over public lands, not reserved for public uses. 43 C.F.R. Sec. 2822.2-1 (1972). In other words, the grant of a right-of-way was a unilateral offer that vested automatically upon an act of acceptance. A published Interior Department decision said essentially the same thing as early as 1938: This grant [R.S. 2477] becomes effective upon the construction or establishing of highways, in accordance with the State laws, over public lands not reserved for public uses. No application should be filed under this act, as no action on the part of the Federal Government is necessary.'' (56 I.D. 533 (May 28, 1938).) The current published Interior regulations state that if administration of any pre-existing right-of-way under regulations promulgated pursuant to FLPMA would diminish or reduce any rights ``conferred by the grant or the statute under which it was issued, * * * the provisions of the grant of the then existing statute shall apply.'' This language was explained in the Department's final rulemaking as follows: In carrying out the Department's management responsibilities, the authorized officer will be careful to avoid any action that will diminish or reduce the rights conferred under a right-of-way grant issued prior to October 21, 1976. FLPMA also provides: Nothing in this title [43 U.S.C. Sec. Sec. 1761 et seq.] shall have the effect of terminating any right-of-way or right-of-use heretofore issued, granted or permitted. However, with the consent of the holder thereof, the Secretary concerned may cancel such a right-of-way or right- of-use and in its stead issue a right-of-way pursuant to the provisions of this title. (43 U.S.C. Sec. 1769 (emphasis added).) These explicit provisions make it clear that the local and the State governments that hold R.S. 2477 rights-of-way have always been entitled to exercise them in accordance with their duly constituted authority and in accordance with the applicable provisions of State law without interference from the Federal Government. No action by Congress would allow any interference by Federal agencies with the exercise of these rights in accordance with State law. The current Department of Interior regulations merely confirm Congress' intent that the agencies honor these vested property rights. Past efforts to define any of the key words in the original R.S. 2477 statute and to determine their original intent have created many different and varied opinions. Words such as ``construction'' and ``highway'' have been the subject of many analyses by lawyers and other experts on public land issues. Even Secretary Babbitt in his policy guidance of January 22 provides a definition of a ``highway'' as it pertains to R.S. 2477 that, in my opinion, is inconsistent with legal precedents. For example, Federal courts have honored the common law definition of ``highways,'' which basically requires only that the route be open to the public to travel at will. Here are just a few of the statements the courts have made which elucidate this point: The act of Congress [43 U.S.C. 932--then R.S. 2477] does not make any distinction as to the methods recognized by law for the establishment of a highway. It is an unequivocal grant of right of way for highways over public lands, without any limitation as to the method for their establishment, and hence a highway may be established across or upon such public lands in any of the ways recognized by the law of the State in which such lands are located. Any other conclusion would occasion serious public inconvenience. (United States v. 9.947.71 Acres of Land, 220 F. Supp. 328 (D. Nev. 1963), quoting Smith v. Mitchell (1899) 21 Wash. 536, 58 P. 667, at 668.) The parties [including the Department of Interior of the United States] are in agreement that the right of way statute [R.S. 2477] is applied by reference to state law to determine when the offer of grant was accepted by the construction of highways. In Colorado, and in Utah, the term ``highways'' includes footpaths. Highways under 43 U.S.C. 932 can also be roads formed by the passage of wagons, etc., over the natural soil. In Colorado, mere use is sufficient: ``It is not required that `work' shall be done on such a road, or that public authorities shall take action in the premises. Use is the requisite element, and it may be by any who have occasion to travel over public lands, and if the use be by only one, still it suffices.'' The Secretary's new policy states that ``a highway is a thoroughfare * * * for the passage of vehicles carrying people or goods from place to place.'' This policy blatantly ignores the history of legal decisions in this area by insisting that a R.S. 2477 right-of-way must provide for the passage of a vehicle. How did the Secretary arrive at this definition? By what authority can he overlook decades of legal opinions and insert his own philosophy or interpretation of the original statute to create this critical definition? There can be no solid foundation upon which he takes this leap of interpretation, except his own desire to rewrite these opinions to say or mean something different. The decisions stand for themselves. This body cannot allow the Secretary's new policy guidance to go unchallenged. Let me underscore the importance of this issue by stating several critical facts. First, it is clear from the record that the Department of Interior understood that FLPMA did not grant authority to the Bureau of Land Management [BLM] to diminish any prior valid existing rights. It is also clear that many counties in western States have been maintaining the transportation infrastructure across Federal lands for many decades without interference from the Federal land managing agencies, particularly the BLM, according to legal and regulatory precedents. However, current actions by Interior and the Department of Justice contradict these express provisions of FLPMA. For example, the Secretary's new policy guidance of last January states that the BLM should not process R.S. 2477 assertions in the absence of a demonstrated, compelling, and immediate need to make such determinations. Thus, BLM has been precluded from addressing R.S. 2477 questions administratively, to the extent it might otherwise have done so. And, Department of Justice officials have been telling county governments that they cannot maintain their R.S. 2477 rights-of-way without first obtaining the permission of the BLM. It is a catch-22 of a serious nature. The BLM is not addressing R.S. 2477 rights-of-way on the lands they manage, while right-of-way holders are being told they cannot exercise the rights unless BLM addresses them first. For this reason, several western counties have been sued by the United States, based on complaints that assert that the counties have violated the law by maintaining roads without first seeking permission from the BLM or the National Park Service. These complaints, as well as other public statements made by Department of Justice officials, assert that permission from the land managing agencies is required before a county can take any action to exercise its rights. The BLM or the Justice Department has told more than one county in Utah that they should seek FLPMA rights-of-way, more accurately described as conditional use permits than true rights-of-way, because there is no R.S. 2477 process in place and because BLM cannot authorize activities on R.S. 2477 rights-of-way without first going through a process. Counties are threatened with lawsuits if they exercise their rights as they have in the past. I recently brought this matter and these current facts to the attention of Attorney General Janet Reno in a letter detailing the history of R.S. 2477. Among several things, I asked her if she was aware of Secretary Babbitt's policy guidance of January 22 and whether her office was consulted as to the legal sufficiency of terms defined within the policy. I asked her because, in the end, if this or any other government policy is challenged in court, the Department of Justice will have to defend it, and the lack of consistency on definitions and other wording contained in that policy could lead to insupportable and unnecessary litigation. Her response to my letter indicates that while her office was aware of the Secretary's January policy statement, she does not say conclusively that Justice was consulted. The letter closes by stating that ``the final determination (on the policy guidance) * * * rests with the Secretary.'' The answer to my query is obvious. This is interesting in light of the fact that the chief of the General Litigation Section of the Environment and Natural Resources Division at the Department of Justice wrote a letter to the Department of Interior's solicitor on January 29 asking that Secretary Babbitt's policy guidance be modified to reflect any future adjudication of R.S. 2477 rights-of-way claims. The Secretary later released a memorandum dated February 20 making this clarification in the policy statement. My point in raising this matter is this: when it comes to establishing a new policy on such a technical issue as R.S. 2477 rights-of-way, where the definition of key words and phrases--like ``highway'' and ``construction''--is of paramount importance, the Government's own legal authorities who may have to defend those definitions should be consulted. To say the least, this situation is intolerable for holders of R.S. 2477 rights-of-ways. Attempts to rectify this situation in an amicable fashion, either through regulation or legislation, have proved futile. Now, Secretary Babbitt is skirting both the letter and spirit of recent congressional direction regarding R.S. 2477 rights-of-way through his policy guidance of last January. If he is serious about bringing closure to this matter once and for all and in a way that is in the best interests of the public and local and State governments that hold R.S. 2477 rights-of-way, then I encourage him to work with the Congress, not against it. Mr. President, some claim that R.S. 2477 rights-of-ways are nothing more than dirt tracks in the wilderness with no meaningful history, whose only value to rural counties arises from the hope of stopping the creation of wilderness areas. Nothing could be further from the truth. No one is suggesting that we turn these rights-of-way into six-lane, lighted highways with filling stations, billboards, and fast food restaurants, as Secretary Babbitt alluded to in his recent letter threatening a veto recommendation if this bill is not amended. Yet, these rights-of-ways constitute an important part of the infrastructure of the western States. My colleagues can think of it this way: Let's say your front yard belonged to someone else--the Federal Government, for example--and the gravel driveway was the only way to get to your house from the street. The Secretary's policy guidance would have the effect of denying you the use of your driveway. You would have to haul your groceries to your front door from the street. A simple illustration, perhaps, but one that shows the importance of these R.S. 2477 rights-of-way to the people in the West. There is no pressing environmental reason to change the R.S. 2477 rules other than to make Federal land more pristine than it has been since the pioneers settled the West. In most cases in Utah, this is absolutely impossible, since some of Utah's R.S. 2477 rights-of-way, like Utah State Highway 12 near Bryce Canyon National Park, are paved and heavily traveled. What would those opposing the full exercise of these rights-of-way have the State of Utah do--dig up the blacktop, remove the pavement, erase the yellow markings, and reclaim this road in the form it existed prior to 1866? That is ludicrous. And, we may as well sell off Bryce Canyon because no one will be able to get there. The right-of-way has been developed over time with improvements to it pursued in the name of protecting public safety and welfare. Mr. President, any disposition of issues related to rights-of-way across public lands is of utmost concern to States like Utah with public lands. These rights-of-way provide the backbone of our transportation infrastructure and have deep historic and traditional roots in the overall development of the West. There are regulatory and legal precedents that should be followed and adhered to when these rights-of-way are administered. The Secretary's policy guidance of January 22 is not consistent with this law, precedent, or custom, which is why the language in the supplemental appropriations bill is necessary. I urge my colleagues to reject the Bumpers amendment. I thank my colleagues from Alaska and I thank my colleague from Utah for their leadership on this matter, and in particular I would like to thank my colleague from Utah for allowing me to go first here because I am conducting a hearing over in the Judiciary Committee and I need to get back. So I am grateful to him for his courtesy in allowing me to do this. I hope that our colleagues will vote down the Bumpers amendment. It just plain is not fair to the West. What Secretary Babbitt is doing is not fair to the West. In fact, it is extreme and it flies in the face of many precedents of law that have existed and do currently exist. Mr. President, I yield the floor. Mr. BENNETT addressed the Chair.

Mr. HATCH

Mr. HATCH. I move to reconsider the vote. Mr. BUMPERS addressed the Chair.

Mr. HATCH

Mr. HATCH. Mr. President, I am pleased today to announce my strong support for S. 543, the Volunteer Protection Act. As the excitement surrounding today's events in Philadelphia have so poignantly illustrated, ours is a nation that has a particular dependence on the volunteer movement. Nonprofit organizations mobilize volunteers by drawing on their members' special talents to meet social or economic needs. Volunteer organizations are currently deeply involved in such activities as alleviating hunger, educating the public about the dangers of drug and alcohol abuse, providing care of the elderly and infirm, providing athletic programs for our Nation's youth, providing opportunity for the poor, building housing for the homeless, promoting literacy and education, finding missing children, teaching fire safety, aiding victims of natural disasters, providing moral education for our youth, and spreading American ideals across the world. In fact, according to a 1990 study by the Hudson Institute, which polled approximately 5,500 associations, volunteer time in America was conservatively estimated to total $3.3 billion per year. This is nothing new. In his 1835 commentary of our country, the epic ``Democracy in America,'' Alexis de Toqueville noted that America was a nation of joiners. To de Toqueville this was very significant. Nongovernmental charitable, religious, and community organizations combined with the family and other natural social units to form what he termed ``intermediary'' organizations--organizations that impede the trend toward centralization of virtually all administration in the national government. It is these intermediary groups that are essential in protecting the liberty of the individual and community from the regulatory state. In recent times, there has been an awareness of the need to strengthen volunteer organizations as a way to buttress the newly rediscovered virtues of limited government. Americans are coming to realize that government should not and cannot be relied on to provide all social services. The gap between American needs and American resources must be filled by the generous efforts of our volunteer corps. But the current litigation nightmare sweeping our Nation is going a long way to hinder the efforts of these important volunteers. This at a time when we must be doing everything possible to encourage the spirit of voluntarism. Mr. President, I'd like to illustrate for you a couple of reasons why I believe the litigious nature of our society is dampening the spirit of voluntarism. A Gallup study revealed the large extent to which the threat of lawsuits, and the prohibitive cost of liability insurance, have a negative effect on volunteer participation in charitable organizations. The survey found that nearly 20 percent of all nonprofit organizations in the United States have experienced volunteers withholding service or resigning due to fear of liability exposure. This figure represents a very significant portion of the volunteer community. Specifically, 1 in 10 nonprofit organizations have experienced the resignation of a volunteer due to liability concerns. Let's do the math--with approximately 600,000 nonprofit organizations in America, we know that 48,000 volunteers have been lost during the past few years strictly due to liability concerns. Additionally, one in six volunteers report withholding their services due to fear of exposure to liability suits. This means that 100,000 potential American volunteers have declined to serve due to fear of exposure to lawsuits. This is an extraordinary figure. Additionally, the rate voluntarism has been steadily declining in recent years. The percentage of Americans volunteering dropped from 54 percent in 1989 to 48 percent in 1993. Sadly, charitable donations are also declining, falling roughly $100 per household during this same short period. However, in 1991 alone, Americans spent a hefty $132 billion on the civil justice system. As a result, it is not surprising to note that liability insurance premiums for nonprofit organizations continue to rise. These figures demonstrate that the on-going litigation craze has seriously damaged the spirit of voluntarism. I would like to document several cases that stand out in particular: Lawyers for an injured mountain climber sued volunteer rescuers for $12 million on the grounds that their rescue methods were negligent and reckless. Prior to assisting this particular climber, the rescue team successfully and carefully made hundreds of rescues without incident. In February 1995, Cleighton Hall, then CEO of Little League Baseball, wrote in the Wall Street Journal that Little League had turned into ``Litigation League.'' In one instance, two youngsters collided in the outfield, picked themselves up, dusted themselves off, and sued their coach. In another instance, lawyers won a large cash settlement when their client was struck by a ball that a player failed to catch--that player, strangely enough, was the client's daughter. Finally, trial attorneys for a child in Runnymeade, NJ, filed suit against the youth's coach when he was struck by a flyball in center field. Finally, a boy in a scouting unit with the Boy Scouts of the Cascade Pacific Council suffered a paralyzing injury in a game of touch football. Several adults volunteered to supervise the trip. The youth's attorneys filed a personal injury suit alleging that the Boy Scouts and the volunteers were negligent for failing to supervise the youth adequately. The jury found that the volunteers were personally liable for $7 million. Oregon law ultimately caused the judgment to be reduced to around $4 million, but few Boy Scout volunteers can afford this kind of judgment. Anyone who has been a Boy Scout or has volunteered in any capacity knows that certain accidents are impossible to prevent. The basic problem is that the actions of this Nation's greedy trial lawyers are serving to undermine the positive effects of voluntarism. Clearly, Mr. President, the current situation cries out for reform. The Volunteer Protection Act helps charities and nonprofit organizations serve their communities by giving their volunteers immunity from lawsuits. Volunteers who act in a grossly negligent or incompetent manner are, of course, not be protected under the legislation. This bill will provide a volunteer protection from litigation in cases where, first, the volunteer was acting within the scope of the volunteer's responsibilities; second, the volunteer was properly licensed, certified, or authorized by the State in which the harm occurred, if such authorization is required; and third, the harm was not caused by willful or criminal misconduct, gross negligence, reckless misconduct, or a conscious, flagrant indifference to the rights or safety of the individual harmed by the volunteer. The bill also limits punitive damages that may be awarded against volunteers and nonprofit organizations based on harm caused by a volunteer acting within the scope of the volunteer's responsibilities. Punitive damages against any such defendant will be available only where the claimant demonstrates by clear and convincing evidence that the volunteer caused the harm through willful or criminal misconduct. Finally, while the bill preempts State law to the extent that it is inconsistent with the bill, the bill will not preempt any State laws that provide additional protections from liability relating to volunteers or nonprofit organizations. Mr. President, this bill is consistent with the overall thrust and punitive damages reforms of my bill, S. 79, the Civil Justice Fairness Act. I am proud to support it as another step in our march toward complete civil justice reform. I yield the floor and suggest the absence of a quorum.

Mr. HATCH

Mr. HATCH. Mr. President, Samuel Johnson said that ``Adversity has ever been considered the state in which a man most easily becomes acquainted with himself.'' On April 7, Arch L. Madsen, a remarkable broadcast pioneer, died at the age of 83 in Salt Lake City. Arch's contributions to the world of radio and television were made all the more noteworthy by the formidable personal challenges he overcame. In rising above adversity with the help of an extraordinary woman, his wife Peggy, Arch discovered the potential within himself that only she and God knew existed. The half-century public career of Arch Madsen is a matter of record. He was president of KSL radio and television stations, founder and president of the Bonneville International Corp. media empire, and an influential member of national and international bodies fighting for freedom of speech. He was appointed by President Reagan to the nine- member Board for International Broadcasting overseeing the operations of Radio Free Europe and Radio Liberty. It was Arch's dream that truth carried on airwaves across the Iron Curtain would lead those on the other side finally to throw off the yoke of totalitarianism. He lived to see his dream fulfilled in Europe. For the inspiring story of Arch's private world we are indebted to his son, Erik H. Madsen, who spoke at the funeral on April 12. I ask unanimous consent that excerpts from Erik's remarks be printed in the Record.

Mr. HATCH

Mr. HATCH. Mr. President, the first thing I wish to express is my gratitude to the Chairman of the Foreign Relations Committee and the Majority Leader for the work they have done in the final weeks to improve this resolution of ratification. The Chemical Weapons Convention before us is significantly better than what we faced last year. In addition, I wish to compliment both the Chairman and the Ranking Member of the Foreign Relations Committee for holding numerous hearings during the past month and for the way they have led the debate over the past two days. The duty of this body to advise and consent has never been more honorably met. This treaty, with the resolution of ratification, while now an acceptable treaty, is not the panacea for chemical weapons that some of the more adamant proponents have implied or suggested. It will not, in and of itself, spare our grandchildren from the horrors of chemical warfare. It will not, in and of itself, protect our citizens from terrorists intent on using chemical weapons. This Convention will not significantly reduce the threat of terrorism, Mr. President. Now that this debate is almost concluded, it would be of great benefit to the future of this agreement that everyone be realistic about this. The Administration and other proponents of this agreement recognized this when they stated in the resolution of ratification, condition 19 that: ``The Senate finds that without regard to whether the Convention enters into force, terrorists will likely view chemical weapons as a means to gain greater publicity and instill widespread fear; and the March 1995 Tokyo subway attack by the Aum Shinrikyo would not have been prevented by the Convention.'' Mr. President, I am greatly concerned about future terrorist threats to the citizens of this country, and I urge those who have suggested that this Convention will curb that threat to decease from such counterproductive rhetoric that could disastrously mislead us about future threats. In addition, I must note to the ardent proponents of the CWC that a number of nations will remain outside of this regime, and some of them have policies inimical to this nation's welfare and security. I have read the Convention, and I wish to state that I read Article XI, section (d) to mean that the U.S. is free to pursue any action-- unilaterally or multilaterally--against nations having chemical weapons. Furthermore, I will insist on clarification indicating that current trade sanctions promoting U.S. national security, and supported by this body as well the executive, will not be infringed by this Treaty. The benefits of this Treaty will not nearly approach the rhetoric of some of its proponents. In my opinion, overblown rhetoric enhanced the possibility that this Treaty could have failed, as some of us studied the document and realized the great gap between the rhetoric and reality. The current resolution of ratification helps to close that gap. The conditions included in the resolution preserve the Senate's constitutional role in treaty-making, including approval of amendments to the CWC. Agreed conditions established standards for U.S. intelligence sharing, including requiring reports on such sharing. They limit the sharing of defensive capabilities under Article X. They clarify our position on the use of riot control agents in wartime circumstances, preserving for us that option along the lines originally intended by our negotiators under President Reagan. They require the President to report regularly on the threat of chemical weapons. Finally--and this is extremely important, Mr. President--the resolution of ratification requires criminal search warrants for challenge inspections against non-complying parties. I stress again, Mr. President, my gratitude to those, on both sides of the aisle as well as in the Clinton Administration, who negotiated this resolution. The letter the Majority Leader has obtained from President Clinton also helps close the gap between rhetoric and reality. The President recognizes, with this letter, that the Treaty may not guarantee the cessation of proliferation of these monstrous weapons and their precursors. He recognizes that, despite the goals of this document, our defenses against their possible use on our troops should not wane. He recognizes that we have a regime--the Australia Group--in place that has addressed the problem of illicit trade in chemicals and that that regime should not go by the wayside. With this letter, the President recognizes that if this Treaty is seen to be failing, we can and will exercise Article XVI, which defines how a State Party may withdraw from the CWC. Despite these improvements and assurances, Mr. President, I know that a number of thoughtful colleagues continue to have reservations about the effectiveness of this Treaty. And I wish to say that I respect their decisions, and I object to certain exceptional notions heard during the debate that opponents of this Treaty object because they are against all arms control treaties. I don't believe this to be the case at all. This Treaty has many practical limitations, and I believe that we should not impugn the motives of individuals who, at the end of the day, have great reservations over its benefits. I have supported many arms control agreements myself, Mr. President, but always after careful consideration of the strategic value as well as practical consequences of making so grave a commitment. And I must say that it has never been more difficult for me to determine the net worth of an arms control agreement as it has been for me regarding the Chemical Weapons Convention before us today. I have concluded that this treaty can advance our security, but only if Administration matches the rhetoric of arms control with the muscle of political will. Because, Mr. President, international norms without political will do not become norms. The benefits of treaties are measured on achievements, not intentions. If intentions were all that mattered, all treaties would be beneficial prima facie. By this standard, the Kellogg-Briand Treaty, which outlawed war, or the 1925 Geneva Convention Against the Use of Chemical Weapons, would have been rousing successes. History has proven that they were not. But, the success of treaties is measured in reality, not rhetoric. And the benefits of this Treaty are measured on a narrow margin. It is after a careful parsing of this margin, and much reflection, that I have determined that I will vote for the Chemical Weapons Convention. But I do so with the expectation that this Chief Executive, and subsequent ones, must be wholly dedicated to implementing this agreement in a way that advances U.S. security interests and protects U.S. domestic interests. Mr. President, this Treaty will give us some tools--inspections and other data collections--that will enhance our knowledge of the threat of chemical weapons. The information will not be comprehensive; it will not apply universally. But, if in collecting this information we reduce the possibility that our troops will face a chemical threat, then this is a tangible, defensible goal, for which anyone could support this Treaty. The United States has been a principal negotiator of this agreement, through Republican and Democratic administrations. To abandon it now would be to abdicate U.S. leadership. We are now burdened to support it and implement it. The goals are admirable. The bridge to achieving those goals, to bridging the gap between the idealistic rhetoric and the vexing reality, will be difficult. On that bridge, Mr. President, will ride the credibility of the United States, and, I believe, the credibility of future arms control. Past administrations have led in the establishment of this international norm. Future administrations will need to verify its legitimacy. President Clinton must carry through on his pledge for strict international compliance and for vigilence regarding threats by terrorists or renegade groups. Over 70 nations have ratified this Convention. Of course, we decided to unilaterally destroy our stockpile more than a decade ago, and we are proceeding as expeditiously as possible, restrained only by prudence regarding safety and the environment. We've known all along that our unilateral destruction plan was not contingent on the outcome of this debate. We determined these weapons were not militarily useful to us; our defense establishment can preserve and promote our national security without them. But as of the moment that our instrument of ratification is deposited, we will be the first of the countries with a large stockpile to ratify. The United States is leading. Will other nations follow? Mr. President, I wish to say a few words about Russia. With the consent of the Senate today, the Administration will be able to deposit the instrument of ratification before the April 29 deadline, allowing U.S. participation in the formation of the Organization for the Prohibition of Chemical Weapons. The U.S. and Russia are the only powers that voluntarily declare they have chemical weapons. On two occasions the Russians have joined us--in the 1990 Bilateral Destruction Agreement and under the 1989 Wyoming Memorandum--in bilateral commitments to expose and destroy our stockpiles. As those who have studied this question know, the record of Russian compliance is not good. As those who read the papers and get the briefings know, the Russian chemical arms capability is not stagnant. President Yeltsin has indicated that he wishes the Russian Duma to approve ratification before the April 29 deadline. I hope they do. The Russians need to join and participate in the initial construction of this regime. And we need to begin to inspect and expose all of our stockpiles. If the Russians are not part of this Treaty, Mr. President, this regime may be stillborn, because the largest stockpile of chemical weapons in the world exists in the Russian Federation. I hope we can work with the Russians as partners beginning next week. If the Senate gives its consent today, Mr. President, next week the hard work will begin. The success or failure of this regime will not be a function of depositing the instrument of ratification. It will be a function of implementing the agreement. I am supporting this Convention today because I think it can only succeed with U.S. participation--and leadership. It can fail for many reasons, including noncompliance or nonparticipation by nations around the world. But it won't succeed without U.S. leadership. Leadership will require more than idealistic promises. We must abandon the rhetoric of unattainable promises and commit to the reality of national interest. I fear the Administration will have a lot of work building the bridge between the rhetoric and reality. On that bridge lies the future of this Convention and the future of arms control.

Mr. HATCH

Mr. HATCH. Mr. President, I rise today to introduce legislation with Senators Conrad, Cochran, Gregg, Moseley-Braun, Enzi, Inouye, Baucus, Reid, D'Amato, Kyl, Ashcroft, Domenici, Hagel, Bond, Thomas, and Murkowski that would make permanent the current moratorium on the application of the pension nondiscrimination rules to State and local government pension plans. During the last Congress, I introduced similar legislation as S. 2047. And this year, a similar provision was included in S. 14, introduced by Senator Daschle. The current laws governing private pension plans contain specific rules aimed at ensuring that pension plans do not discriminate in favor of highly paid employees. For nearly 20 years, State and local government pension plans have been deemed to satisfy these complex nondiscrimination rules until Treasury can figure out how or if these rules are applicable to unique government pension plans. This bill simply puts an end to this stalled process and dispels two decades of uncertainty for administrators of State and local government retirement plans. Let me summarize the evolution of this issue and why this bill is being introduced today. Mr. President, the Federal Government has long ago established a policy of encouraging tax-deferred retirement savings. Most retirement plans that benefit employees are employer-sponsored tax-deferred retirement plans. Over the years, Congress has required that these plans meet strict nondiscrimination standards designed to ensure that they do not provide disproportionate benefits to business owners, officers, or highly compensated individuals relative to other employees. In response to the growing popularity of employer-sponsored tax- deferred pension plans, Congress passed the Employee Retirement Income Security Act [ERISA] in 1974 to enhance the rules governing pension plans. However, during consideration of ERISA, Congress recognized that nondiscrimination rules for private pension plans were not readily applicable to public pension plans because of the unique nature of governmental employers. Former Representative Al Ullman stated, during Ways and Means Committee consideration of ERISA, that Congress was not prepared to apply nondiscrimination rules to public plans, saying that: The committee exempted Government plans from the new higher requirements because adequate information is not now available to permit a full understanding of the impact these new requirements would have on governmental plans. After studying the issue, the Internal Revenue Service on August 10, 1977, issued News Release IR-1869, which stated that issues concerning discrimination under State and local government retirement plans would not be raised until further notice. Thus, an indefinite moratorium was placed on the application of the new rules to government plans. In 1986, Congress passed the Tax Reform Act of 1986, which made further changes to pension laws and the general nondiscrimination rules. On May 18, 1989, the Department of the Treasury, in proposed regulations, lifted the 12-year public sector moratorium and required that public sector plans comply with the new rules immediately. However, further examination revealed, and Treasury and the IRS recognized, that a separate set of rules was required for State and local government plans because of their unique features. Consequently, through final rules issued in September 1991, the Treasury reestablished the moratorium on a temporary basis until January 1, 1993, and solicited comments for consideration. In addition, State and local government pension plans were deemed to satisfy the statutory nondiscrimination requirements for years prior to 1993. Since then, the moratorium has been extended three more times, the latest of which is in effect until 1999. Mr. President, here we are, in April 1997, 23 years since the passage of ERISA, and State and local government pension plans are still living under the shadow of having to comply with the cumbersome, costly, and complex nondiscrimination rules. Experience over the past 20 years has shown that the existing nondiscrimination rules have limited utility in the public sector. Furthermore, the long delay in action illustrates the seriousness of the problem and the doubtful issuance of nondiscrimination regulations by the Department of the Treasury. Mr. President, during consideration of another extension of the moratorium, a coalition of associations representative of State and local governmental plans summarized their current position in a letter to IRS Commissioner Margaret Richardson dated October 13, 1995. In our discussions with Treasury over the past two years, there have been no abuses or even significant concerns identified that would warrant the imposition of such a cumbersome thicket of federal rules on public plans that already are the subject of State and local government regulation. Accordingly, while we always remain open to further discussion, as our Ways and Means statement indicates, the experience of the past two years in working with Treasury to develop a sensible and workable set of nondiscrimination rules for governmental plans has convinced us that the task ultimately is a futile one--portending tremendous cost, complexity, and disruption of sovereign State operations in the absence of any identifiable problem. Mr. President, the sensible conclusion of this 20-year exercise is to admit that the Treasury is not likely to issue regulations for State and local pension plans and Congress should make the temporary moratorium permanent. Furthermore, there are examples to support this legislation. Relief from the pension nondiscrimination rules is not a new concept. In reality, Mr. President, State and local government pension plans face a higher level of scrutiny. State law generally requires publicly elected legislators to amend the provisions of a public plan. Electoral accountability to the voters and media scrutiny serve as protections against abusive and discriminatory benefits. Moreover, precedent exists for Congress to grant relief from the nondiscrimination rules. In 1986, the Congress established the Thrift Savings Fund for Federal employees. As originally enacted, the fund was required to comply with the 401(k) nondiscrimination rules on employee contributions and matching contributions to the fund. However, in 1987, as part of a Continuing Appropriations Act for 1988, the Congress passed a provision that made these nondiscrimination rules inapplicable to the Federal Thrift Savings Fund. Thus, Congress has reaffirmed the need to treat governmental pension plans as unique. Mr. President, this legislation is not sweeping, nor does it grant any new treatment to these plans. Because of the moratorium, governmental plans are currently treated as satisfying the nondiscrimination rules. Lifting the moratorium would impose on governmental pension plans the cost task of testing for discrimination when no significant abuses or concerns exist. In fact, finally imposing the nondiscrimination rules at this juncture may require benefits to be reduced for State and local government employees and force costly modifications to these retirement plans. This legislation coincides with the principle of allowing a State to enjoy the right to determine the compensation of its employees. Mr. President, with another expiration of the moratorium looming in the future, I believe it is time to address this issue. I have no illusion that it will be resolved quickly. The complexities of these rules and the uniqueness of governmental plans have brought us to where we are today. I believe that, as Senators better understand the history of this issue, they will agree with us that the appropriate step is to end this uncertainty and make the temporary moratorium permanent. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. HATCH

Mr. HATCH. Mr. President, I rise today to introduce legislation with Senators Conrad, Cochran, Gregg, Moseley-Braun, Enzi, Inouye, Baucus, Reid, D'Amato, Kyl, Ashcroft, Domenici, Hagel, Bond, Thomas, and Murkowski that would make permanent the current moratorium on the application of the pension nondiscrimination rules to State and local government pension plans. During the last Congress, I introduced similar legislation as S. 2047. And this year, a similar provision was included in S. 14, introduced by Senator Daschle. The current laws governing private pension plans contain specific rules aimed at ensuring that pension plans do not discriminate in favor of highly paid employees. For nearly 20 years, State and local government pension plans have been deemed to satisfy these complex nondiscrimination rules until Treasury can figure out how or if these rules are applicable to unique government pension plans. This bill simply puts an end to this stalled process and dispels two decades of uncertainty for administrators of State and local government retirement plans. Let me summarize the evolution of this issue and why this bill is being introduced today. Mr. President, the Federal Government has long ago established a policy of encouraging tax-deferred retirement savings. Most retirement plans that benefit employees are employer-sponsored tax-deferred retirement plans. Over the years, Congress has required that these plans meet strict nondiscrimination standards designed to ensure that they do not provide disproportionate benefits to business owners, officers, or highly compensated individuals relative to other employees. In response to the growing popularity of employer-sponsored tax- deferred pension plans, Congress passed the Employee Retirement Income Security Act [ERISA] in 1974 to enhance the rules governing pension plans. However, during consideration of ERISA, Congress recognized that nondiscrimination rules for private pension plans were not readily applicable to public pension plans because of the unique nature of governmental employers. Former Representative Al Ullman stated, during Ways and Means Committee consideration of ERISA, that Congress was not prepared to apply nondiscrimination rules to public plans, saying that: The committee exempted Government plans from the new higher requirements because adequate information is not now available to permit a full understanding of the impact these new requirements would have on governmental plans. After studying the issue, the Internal Revenue Service on August 10, 1977, issued News Release IR-1869, which stated that issues concerning discrimination under State and local government retirement plans would not be raised until further notice. Thus, an indefinite moratorium was placed on the application of the new rules to government plans. In 1986, Congress passed the Tax Reform Act of 1986, which made further changes to pension laws and the general nondiscrimination rules. On May 18, 1989, the Department of the Treasury, in proposed regulations, lifted the 12-year public sector moratorium and required that public sector plans comply with the new rules immediately. However, further examination revealed, and Treasury and the IRS recognized, that a separate set of rules was required for State and local government plans because of their unique features. Consequently, through final rules issued in September 1991, the Treasury reestablished the moratorium on a temporary basis until January 1, 1993, and solicited comments for consideration. In addition, State and local government pension plans were deemed to satisfy the statutory nondiscrimination requirements for years prior to 1993. Since then, the moratorium has been extended three more times, the latest of which is in effect until 1999. Mr. President, here we are, in April 1997, 23 years since the passage of ERISA, and State and local government pension plans are still living under the shadow of having to comply with the cumbersome, costly, and complex nondiscrimination rules. Experience over the past 20 years has shown that the existing nondiscrimination rules have limited utility in the public sector. Furthermore, the long delay in action illustrates the seriousness of the problem and the doubtful issuance of nondiscrimination regulations by the Department of the Treasury. Mr. President, during consideration of another extension of the moratorium, a coalition of associations representative of State and local governmental plans summarized their current position in a letter to IRS Commissioner Margaret Richardson dated October 13, 1995. In our discussions with Treasury over the past two years, there have been no abuses or even significant concerns identified that would warrant the imposition of such a cumbersome thicket of federal rules on public plans that already are the subject of State and local government regulation. Accordingly, while we always remain open to further discussion, as our Ways and Means statement indicates, the experience of the past two years in working with Treasury to develop a sensible and workable set of nondiscrimination rules for governmental plans has convinced us that the task ultimately is a futile one--portending tremendous cost, complexity, and disruption of sovereign State operations in the absence of any identifiable problem. Mr. President, the sensible conclusion of this 20-year exercise is to admit that the Treasury is not likely to issue regulations for State and local pension plans and Congress should make the temporary moratorium permanent. Furthermore, there are examples to support this legislation. Relief from the pension nondiscrimination rules is not a new concept. In reality, Mr. President, State and local government pension plans face a higher level of scrutiny. State law generally requires publicly elected legislators to amend the provisions of a public plan. Electoral accountability to the voters and media scrutiny serve as protections against abusive and discriminatory benefits. Moreover, precedent exists for Congress to grant relief from the nondiscrimination rules. In 1986, the Congress established the Thrift Savings Fund for Federal employees. As originally enacted, the fund was required to comply with the 401(k) nondiscrimination rules on employee contributions and matching contributions to the fund. However, in 1987, as part of a Continuing Appropriations Act for 1988, the Congress passed a provision that made these nondiscrimination rules inapplicable to the Federal Thrift Savings Fund. Thus, Congress has reaffirmed the need to treat governmental pension plans as unique. Mr. President, this legislation is not sweeping, nor does it grant any new treatment to these plans. Because of the moratorium, governmental plans are currently treated as satisfying the nondiscrimination rules. Lifting the moratorium would impose on governmental pension plans the cost task of testing for discrimination when no significant abuses or concerns exist. In fact, finally imposing the nondiscrimination rules at this juncture may require benefits to be reduced for State and local government employees and force costly modifications to these retirement plans. This legislation coincides with the principle of allowing a State to enjoy the right to determine the compensation of its employees. Mr. President, with another expiration of the moratorium looming in the future, I believe it is time to address this issue. I have no illusion that it will be resolved quickly. The complexities of these rules and the uniqueness of governmental plans have brought us to where we are today. I believe that, as Senators better understand the history of this issue, they will agree with us that the appropriate step is to end this uncertainty and make the temporary moratorium permanent. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. HATCH

Mr. HATCH. I would like to say this in response. I just spent 30 minutes laying out some of the evidence that I think clearly shows the grounds for further investigation. The question is how can the Attorney General continue this investigation within the Department without a conflict of interest? I do not think she can. Again, I will cite her testimony back in 1993. She had a strong view that even the slightest appearance of a conflict of interests should, at all costs, be avoided by the independent counsel. She said this: . . . there is an inherent conflict of interest whenever senior Executive Branch officials are to be investigated by the Department of Justice and its appointed head, the Attorney General. The Attorney General serves at the pleasure of the President. Recognition of this conflict does not belittle or demean the impressive professionalism of the Department's career prosecutors, nor does it question the integrity of the Attorney General and his or her political appointees. Instead, it recognizes the importance of public confidence in our system of justice, and the destructive effect in a free democracy of public cynicism. She further testified that: It is absolutely essential for the public to have confidence in the system and you cannot do that when there is conflict or an appearance of conflict in the person who is, in effect, the chief prosecutor. . . . The Independent Counsel Act as designed to avoid even the appearance of impropriety in the consideration of allegations of misconduct by high-level Executive Branch officials and to prevent . . . the actual or perceived conflicts of interest. The Act thus served as a vehicle to further the public's perception of fairness and thoroughness in such matters, and to avert even the most subtle influences that may appear in an investigation of highly-placed Executive officials. I really believe that the case has been made here. And, although I still have very fond feelings toward the Attorney General, I think she has made a tragic error. And I believe that this is not going to end it. In the end, I think we would have been a lot farther down the road had she applied for the appointment of an independent counsel. Be that as it may, these remarks had to be made because they are important. Either we are going to have a statute or we are not. As I have said, I have never been a strong supporter of this statute. But it is there and it has been used in prior administrations. It has been used in this administration. And this case, it seems to me, is even more overwhelming than some of the prior cases where it has been used. I yield the floor, and I thank my colleague.

Mr. HATCH

Mr. HATCH. I yield.

Mr. HATCH. Mr. President, I compliment the distinguished Senator from Oregon and Ms. Shea for doing this historic and unprecedented resolution. This is a beautiful dog, Ms. Shea, and we are proud to have you on the floor of the U.S. Senate and proud to have your dog here as well.

Mr. HATCH

Mr. HATCH. Mr. President, I ask unanimous consent I be permitted to proceed as in morning business for 20 minutes.